Anti-"Flag Desecration Amendment"

This week, the U.S. Senate is set for a historic vote on the Anti-“Flag Desecration Amendment.” Supporters have three main arguments. First, the flag has historically been protected. Second, flag-burning does not qualify as free-speech. Third, Americans – especially veterans - need sheltering from this “hateful” speech.

Yet, is this really the case? In the entire history of the United States, there have been less than 200 reported cases of flag desecration – less than one a year. In fact, only since Congress tried to ban flag burning in 1989 did this non-issue become an issue; reports increased to eight per year. Using history as our guide, this Amendment would produce MORE flag burning, not less! In the past, laws have been targeted at commercial uses of the flag, such as wearing flag-themed clothing. However, this amendment is NOT targeted at this type of “misuse”, which occurs far more frequently, but at rare instances of political expression.

Despite two Supreme Court cases finding that flag-burning is protected, political speech, Congress believes this act does not deserve Constitutional protection. The supporters of this amendment would want to reduce free speech rights to only “acceptable” opinions. Yet, as Justice Jackson once wrote, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” America is a great country precisely because we have a free marketplace of ideas, a marketplace that Congress is looking to shutter.

Finally, do Americans need to be protected from flag burning? James Warner, a Vietnam POW who was tortured for his refusal to denounce the U.S. during his imprisonment, responds with a resounding “NO!” Nat Hentoff, in his book, Free Speech for Me but Not for Thee, relates Warner’s story:

“During one interrogation, an enemy officer gleefully showed Warner a photograph of Americans protesting the war by burning the flag. ‘There,’ the officer crowed, ‘people in your country protest against your cause! That proves you are wrong!’”

Warner answered, “‘No. That proves I am right. In my country, we are not afraid of freedom, even if it means that people disagree with us. The officer was on his feet in an instant, his face purple with rage. He smashed his fist on the table and screamed at me to shut up. While he was ranting, I was astonished to see pain, confounded by fear, in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool — the picture of a burning flag — against him.’”