Richard Parker, a Professor of Law at Harvard University, says the media have been engaging in a “cynical maneuver” on the issue of a proposed constitutional amendment to protect the American flag. He says, “…the media – like most opponents of the amendment – insist on framing the question as ‘protecting the flag versus protecting free speech.’” A variation of this claim is that, if the flag amendment passes, it would be the first time in our nation’s history that the First Amendment to the U.S. Constitution would have been amended. That claim is supposed to arouse in us a sense of awe and dread. The implication is that we certainly don’t want to see our free speech rights eroded.
But Parker says the truth is that the flag amendment doesn’t amend the First Amendment. It amends what the proponents believe was a huge mistake by the Supreme Court – the 1989 5-4 decision that claimed that flag desecration was protected by the First Amendment. Until that point in our history, flag desecration was never considered to be a protected activity under the First Amendment. Parker says a flag amendment will not subvert the Bill of Rights. Rather, it will restore the First Amendment to its proper role and its meaning that had long been taken completely for granted.
The other claim we hear repeatedly from the media, including figures such as Cokie Roberts on ABC News, is that the flag amendment will put people in jail who wear clothing with a design resembling the flag. Parker says this is completely erroneous. The amendment only says that Congress will have the power to prohibit the physical desecration of the American flag. This means that Congress would have the power to protect an actual flag – not a symbol or image of the flag. This is meant to prohibit burning it, urinating on it, or defecating on it. What’s more, the amendment does not specify imprisonment for anyone.
The original case involved a Marxist who incinerated the flag after chanting, “Red, white and blue, we spit on you.” Opponents of the amendment claim that desecration of the flag today is rare. But a case was considered by the Wisconsin Supreme Court as recently as June 25, when it ruled that a 17-year-old self-described anarchist could not be prosecuted under a state law banning the desecration of the flag.
The court said the law was unconstitutional because of that 1989 Supreme Court decision. In this case, this punk had been stealing American flags, including one from a local golf club. He defecated on it and left it on the clubhouse steps.
Is this act of destruction what the founding fathers had in mind when they crafted the First Amendment? Is conduct in this case the same as free speech? Is an act of arson against the flag protected under the Bill of Rights? The answers to these questions do not seem to be “yes.” Otherwise, flag desecration wouldn’t have been illegal for more than 200 years. Soon, the U.S. Senate will vote on the flag amendment. Supporters need about two or three votes to pass it.