Note: This article was originally written in response
to an editorial by Adrian Cronauer which appeared in the Chicago Tribune
on Dec. 28, 1997. In it, he argued for the passage of a Constitutional
Amendment prohibiting desecration of the American flag. I had intended
to submit this response to the Tribune for consideration, but never got
around to it. Nonetheless with the likes of governor-wannabe Patrick
Fitzgerald and others continuing to press for its passage, I feel this
reply is at least as relevant today. Adrian Cronauer's Dec. 28 editorial in support of an amendment
banning physical desecration of the U.S. flag is an argument resting on
a sand foundation. I find it hard to grasp that any staunch defender
of the First Amendment would rally for such an egregious affront to it.
Mr. Cronauer states that the amendment overwhelmingly
passed the House and that 49 states have passed resolutions urging its
passage. No suprise there; it is a brave politician who would stand
against such a politically popular issue. Still, 114 Representatives
decided to do just that, sticking with their convictions. He also
cites polls showing about 5 out of 6 Americans in favor of the amendment.
While that is worrisome, it is not unexpected, considering Tribune poll
figures indicating 27% of Americans think the First Amendment "goes too
far." ("Second Thoughts on Free Speech," 7/4/97.)
An amendment banning physical desecration of the flag
is rife with loopholes and problems. What, precisely, would constitute
a flag? What if a protester burned a flag with alternate colors?
Would pictures or videos of burning flags be prohibited? What about flags on
underwear? Doormats? Napkins? Could someone desecrating
a U.S. flag in, say, Mexico be extradited to the U.S.?
Let's face it: very, very few Americans have any
desire to burn or otherwise desecrate our flag. So why not protect
it? There are several reasons. First, to allow flag
desecration is not to condone it. Notwithstanding our nanny government,
our society allows all sorts of objectionable behavior. This does
not mean that we encourage it.
Flag desecration is a relatively rare phenomenon.
It is entirely likely, however, that banning it will produce a spate of
flag burnings in protest, precisely what it aims to protect the flag from.
Another reason against passage of this amendment is the
broader implications it will have on our freedoms of expression.
Flag burning is a form of expression which is deeply offensive to most
of us, but it is an expression nonetheless. The sheer level of offensiveness
makes it the ultimate form of political defiance. This amendment
would create a whole new breed of "criminal" in America: the political
prisoner, whose crime involved no theft or injury to anyone, just giving
deep offense. I can only wonder what other methods of giving offense
might be considered ripe for criminalization by future generations of Americans.
Criticizing the President? Don't dismiss the possibility; it's a
crime in several other countries. People usually pay no heed to the
slippery slope until it's too late.
The American flag is a powerful symbol of what this country
stands for. Does America stand for "patriotism, sacrifice, and love
of country," as Mr. Cronauer suggests? These qualities, admirable
as they are, can be found in any country, from here to North Korea.
But America also has something very special and unique, something that
truly sets us apart from all other countries. It is our Bill of Rights.
Our country was founded on the premise of freedom, that we should be able
to live, express ourselves, and yes, protest against our government as
we see fit, so long as our actions do no economic or physical harm to others.
Flag desecration impinges on nobody else's rights; it is not a form of
theft or initiation of force against others; and it does not physically
injure anyone.
To protect a symbol means nothing if the freedoms it represents
are desecrated in the process. The flag does not need protection.
It will now and always stand alone. Each of us in our hearts holds
some meaning of what our flag stands for. If anything else needs
protecting, it is the freedoms it represents. He who wraps himself
in the flag in a figurative sense desecrates it every bit as much as he
who would burn it in the streets of Tehran.
Proponents of anti-flag desecration laws, mostly conservative
Republicans, have had these laws repeatedly defeated and declared unconstitutional
all the way up to the Supreme Court. They played by the rules of
our system and lost, so now they're trying to win by changing those rules
set up in our Bill of Rights. The "secular sacredness" Mr. Cronauer
attributes to our flag would not exist were it not for the true sacredness
of the freedoms it represents. Freedom of expression is trivial and
meaningless if it does not allow those forms of expression which most strongly
touch on our firmly-held beliefs. Let us not strive to protect the
flag in fear of the freedoms it represents. Let's instead protect
those freedoms, so that we and future generations can enshrine the flag
in our hearts with pride.
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