The Annual Flag-Burning Amendment Fuss

by Steve Chapman

If you were out watching your local fire department battle wildfires caused by all the protesters burning Old Glory, you may have missed the return of this amendment. Time after time, going back more than a decade, Congress has failed to approve it by the two-thirds majority required in each chamber.

But fanatics do not discourage easily. Those pushing the amendment know that it doesn't matter how many times they lose, as long as they can manage to win once.

The drive began back in 1989, after the Supreme Court surprised the nation by overturning a Texas law forbidding such insults to the flag, which the justices concluded are an exercise of free speech. An angry Congress then passed a federal law containing the same prohibition, and the court responded by overturning it as well. So the only avenue open to those who want to punish flag desecration is to overrule the court -- by amending the Constitution. On Tuesday, 298 members of the House voted to do just that.

Why should we attach an exception to the First Amendment? The advocates offer several arguments:

• Flag desecration isn't speech but conduct, and we regulate all sorts of conduct. Flag burning, it's true, is a form of conduct. But it's not conduct on the order of lighting a barbecue grill. It's a form of conduct that communicates a message. The amendment supporters want to ban it only in some cases -- those cases in which the message being sent is one they find offensive.

  Flag etiquette stipulates one way to dispose of an old or soiled flag: burning it. That type of flag destruction would be allowed, because it implies respect rather than contempt. So, the proposed ban amounts to forbidding the expression of one idea but not the opposite idea.

• Flag desecration is a simple crime, and the fact that it carries a political message shouldn't entitle it to special protection. As Northwestern University law professor Stephen Presser puts it, "Political assassination ... is obviously crime, even though it is a form of expression. Similarly forbidden is spray painting political slogans on national monuments." But murder is murder, regardless of the victim and regardless of the message it conveys. If the law on political assassination were modeled on the flag amendment, we would outlaw the assassination of some presidents but not others.

  Similarly, defacing public property is illegal, whether the spray-painter adorns the Lincoln Memorial with radical slogans, smiley faces or "God bless America." The fact that monuments are public property makes a vast difference. If you want to build a replica of the Lincoln Memorial in your backyard and vandalize it, nobody's going to stop you. Likewise, protesters can't swipe a flag from a public building and destroy it, because it doesn't belong to them. They have to buy their own.

• Our soldiers have fought and died for the flag -- not for the right to burn it. "If Private Ryan's saviors heard that they died on America's battlefields so that their flag could be burned on America's street corners, they would turn over in their graves," writes retired Army Maj. Gen. Patrick Brady, chairman of the board of the Citizens Flag Alliance. "Who would tell the troops in Kosovo they are fighting for the right to burn Old Glory?"

  Well, heaven knows what the troops in Kosovo are fighting for. But lots of veterans have opposed the amendment -- notably Colin Powell, who served as chairman of the Joint Chiefs of Staff, and former Nebraska Sen. Bob Kerrey, who won the Medal of Honor in Vietnam.

In 1989, the Supreme Court recognized that protecting Americans who burn their own flag may not be a pleasure, but it is "a sign and source of our strength." The thinking behind last week's House vote to repeal that freedom was more like a sign of weakness.