Flag-burning amendment an unnecessary addition

June 14, 1999|By Linda R. Monk

TODAY is Flag Day, and the American Legion will be celebrating the occasion by burning flags -- old ones, put to death respectfully, of course. Still, it's more than a little ironic that the organization spearheading the movement for a constitutional amendment to prohibit flag burning marks Flag Day with a bonfire.

The proposed Flag Protection Amendment is just a few votes shy of the necessary two-thirds majority in the Senate -- the stumbling block in past attempts, not an easy rollover like the House.

United senators

The American Legion is hoping for passage before July 4, but North Dakota's Democratic senators Byron Dorgan and Kent Conrad are holding the Bill of Rights amenders off at the pass. They say that flag burning can be punished by statute, not constitutional amendment, though the Supreme Court struck down a similar federal law in 1990 as a violation of the First Amendment.

Balderdash, according to Phil Budahn, a spokesman for the American Legion, who calls the Dorgan-Conrad strategy "ill-disguised political cover." But outlawing flag burning can be accomplished in several ways short of a constitutional amendment.

Banning burning

Here's how: First, make it illegal to light fires on government property. That would take care of any public demonstrations featuring flag burning. But then most federal and city fire codes already forbid this for public safety reasons.

Second, outlaw the burning of government-owned flags. But wait a minute, that's already a crime: destruction of government property. Let's see -- we could ban the burning of flags by people other than their owners. But that's covered by arson laws.

What's left, then? Outlaw the burning of a privately owned flag by a private individual on private property. Hey, but isn't this America, where you can do what you want with your own property? That principle, by the way, is what ultimately protects the American Legion, and government officials, when they destroy old flags by fire: They can only burn the flags that belong to them or that others give them. Otherwise, the legion and the government might have a roving mandate to remove and incinerate flags hanging in the rain, improperly lit at night, or flying faded and ragged at the used car lot. All these examples could be considered "desecration," because they violate federal standards for proper display of the flag.

Going by the book

The truth is that if the American Legion and other supporters of the Flag Protection Amendment were really out to prevent flag burning, they would use the laws already on the books. No need to single out flag burning as a form of political protest: It's already illegal under existing laws that protect public safety and punish the destruction of property belonging to others. The only thing that's not covered is backyard barbecues of the Stars and Stripes by wild-eyed radicals. Why amend the Constitution for that?

Paul McMasters of the Freedom Forum, a nonpartisan foundation dedicated to promoting First Amendment values, believes that many Americans -- including some public officials -- just don't understand the amendment process. "They don't realize that if the Senate and the House pass an amendment by a two-thirds majority, it doesn't go to the White House, it goes directly to the states."

Unlike a regular law, the president cannot veto a proposed constitutional amendment. And 49 states (all except Vermont) have already passed resolutions supporting the ratification of the Flag Protection Amendment.

Mr. McMasters thinks that "the majority of newspapers are giving this issue short shrift." He points out the contrast between media attention to the Equal Rights Amendment and the Flag Protection Amendment.

The FPA would have "at least as dramatic an impact as the ERA," he says, because it "would fundamentally change the compact between the American government and the people on the tolerance of dissent," but "most people are unaware because it's not being covered."

Ten years ago, the Supreme Court first ruled in Texas vs. Johnson that flag burning could be a form of protected speech under the First Amendment. However, the court took great pains to note that a flag burner could be punished under other, more general laws that restricted conduct in general without focusing on the message attached to it.

Yet many of our political leaders have chosen not to take that route, preferring instead to demand a constitutional amendment. The number of flag burnings in the past 10 years is, to say the least, under-whelming; we should not use an Apache helicopter to shoot down a gnat. The chance of a self-inflicted wound is too great.

Linda R. Monk is the author of "The Bill of Rights: A User's Guide," which won the American Bar Association's Silver Gavel Award.

Pub Date: 6/14/99

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