By Scott Tibbs. Published November 28, 2007, in the Herald-Times.
The picture underneath the headline "Honoring our flag and our veterans" in the November 12 Herald-Times presents an ironic challenge for those who propose a constitutional amendment to ban flag burning, or more broadly, flag desecration. The large picture features several flags being burned, a practice outlined in the U.S. Flag Code regarding how to properly retire a flag.
And yet, if those same flags were burned as part of a political protest criticizing American foreign policy, a flag desecration amendment would make that burning illegal. So what makes a "good" flag burning different from a "bad" flag burning? The answer is simple: whether a flag burning is good or bad - or in the case of a flag desecration amendment, legal or illegal - depends on the motivation and thoughts of the person doing the burning. If the intent is to respectfully retire a flag, you are fine. If the intent is to dishonor the flag, you are on the wrong side of the law.
Despite the argument made by some that a flag desecration amendment would ban conduct rather than speech, the contrast between burning a flag to retire it and burning a flag to disrespect it proves that argument to be false. Clearly, the purpose of a flag desecration amendment is to criminalize a message that many people find offensive. Even if the vast majority of the American people agree that the message is offensive, do we really need to undermine the principles established by the First Amendment by censoring that message?
The beauty of the Bill of Rights is that it was written not to grant rights to the American people, but to make it illegal for government to restrict the rights that our founding fathers assumed we had by nature of being human beings. In fact, when our founding fathers seceded from England, they wrote; "we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights." The Declaration of Independence goes on to state that the purpose of government is "to secure these rights."
This is why it is such a bad idea to amend the Constitution to restrict the right to dissent against the government, even with an offensive message. A flag desecration amendment would pervert the purpose of the Constitution, which is to limit government, and instead use the highest law in the land to limit the rights of individuals. That has been done only once before, with Prohibition, and the results were less than ideal. That amendment was repealed within a generation.
Let's be honest here. There is no compelling state interest that justifies a constitutional amendment to ban flag desecration. Given the small number of cases annually, this is little more than politicians exploiting patriotism to gain a few votes and attack their opponents. While feelings might be hurt, no one's rights are violated when someone desecrates an American flag. There is no right to not be offended, and political correctness is just as destructive when practiced by the Right as when practiced by the Left.
The American flag does not represent a people or a territory. The American flag represents a set of values that makes this country unique. The United States of America is more than just a nation. America is an idea and a standard of freedom. Limiting political speech, no matter how offensive that speech might be, is a far more serious desecration of the American flag than a childish individual who lights a flag on fire to get attention and make people angry.
