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Vivian Berger

Presidential candidate General Wesley K. Clark has announced that he favors a constitutional amendment permitting Congress to ban physical “desecration” of the American flag. The need to alter the Constitution, rather than merely enact a law, to achieve this end arises from the U.S. Supreme Court’s invalidation, in Texas v. Johnson (1989) and United States v. Eichman (1990), of both a state and a federal statute criminalizing such activity. These decisions, by Justice William Brennan, held that the right to free expression guaranteed by the First Amendment protects flag burning by political protesters where no breach of the peace occurs. The desire to preserve the flag as a symbol of national unity can not justify government censorship of conduct aimed at communicating a different message. While Clark’s American Legion audience applauded his statement, principle (if not expedience) calls for rejecting a flag amendment. Candidates John Kerry, Joseph Lieberman and John Edwards have done so. Because our nation’s founding charter ought to reflect basic tenets, not the whims of passing majorities, it should rarely be revised and then only for pressing reasons. Such reasons clearly supported the post-Civil War amendments, which abolished slavery and its incidents, and the later ones granting suffrage to women and 18-year-olds. The proposed flag amendment, by contrast, would be the first to narrow fundamental rights, thereby setting a dubious precedent. If that effort were to succeed, what further “improvements” would follow? Protection against desecration of the Bible? Of the Constitution? We need to beware the slippery slope. As Brennan expressed it in Johnson, we can best preserve the flag’s special role not by punishing those who feel differently, but by persuading them that they are wrong. The wisdom of this bedrock principle underlying the First Amendment has not eroded. Imprisoning peaceful demonstrators comports better with authoritarian than with democratic values; China and Cuba, for example, arrest dissidents who “dishonor” the national flag. Further, flag burnings and similar public displays are very rare; they occurred mainly in the Vietnam era. Banning such behavior now may actually provoke it. Several of the Eichman defendants set fire to the flag as a protest against the Flag Protection Act of 1989 (under which they were prosecuted). The amendment also suffers from both vagueness and overbreadth defects. Neither of the key terms, “desecration” or “flag,” is defined. Would the former include superimposing a peace symbol on the flag’s design, or using the flag in an advertisement? In 1907, before the First Amendment was made applicable to state action, the high court in Halter v. Nebraska upheld a flag-protection statute against due process attack in the case of a beer bottle displaying pictures of Old Glory. (The brand was named “Stars + Stripes.”) By the same token, does the concept of “flag” cover a banner employed in whole or in part as clothing, such as a scarf, a patch or a pin? Does it extend to a photograph or a banner containing more or less than the requisite number of stars or stripes? Congress, the courts and law enforcement would have sweeping discretion to bar whatever conduct displeases them. That is not the American way. The beginnings Robert Justin Goldstein, an expert on the history of the flag-desecration controversy, notes that the issue emerged only in the 1890s. The initial focus of the flag-protection movement (that resulted in prohibitory laws in all the states) was commercialization of the symbol, as in the beer advertisement in Halter. The purpose of suppressing political dissent through prosecution of flag abusers arose after World War I and reached a pinnacle during the Vietnam War. Our current involvement in Iraq, against a backdrop of growing international terrorism, once more exposes deep fault lines in American society between those who reflexively support legislation or action undertaken in the name of national security and those who advocate more attention to civil liberties and hesitancy in resorting to force. In these times, armchair warriors are quick to insist that powerful forms of opposition to the state, such as flag desecration, must be squelched. Yet a true hero, former Senator John Glenn, commented that the people who died following the flag did not do so “for a red, white and blue piece of cloth.” He added: “It would be a hollow victory indeed if we preserved the symbol of our freedoms by chipping away at those fundamental freedoms themselves.” Clark should heed his message. Vivian Berger, professor emerita of Columbia Law School, is a National Law Journal columnist.

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