Flashback: A Proposed Constitutional Amendment

In anticipation of the shutdown of Apple’s MobileMe service, I am re-posting some of my old blog entires before they become harder to retrieve.

This entry was originally posted on September 11, 2005. Please note that the link in the second paragraph at the time was to my Senator’s web page in the Senate. As he is no longer in the Senate the page does not exist anymore, I have changed the link to the Wikipedia entry on him.

In April, 2004, I wrote a blog entry that covered the five items that occasionally come up as potential amendments to the US constitution. This item covers the one amendment that, as of right now, is most likely to become law.

On June 22, 2005, the US House of Representatives narrowly passed a bill that would enable Congress to pass a law that bans desecration of the United States flag. The following day, I sent an e-mail to one of my senators, Arlen Specter , urging him to vote against it when it comes up for a vote in the Senate.

For some background on this amendment, it was first proposed after the 1989 Supreme Court ruling in Texas v. Johnson, which declared that a Texas state law that prohibited the burning of a US flag, was unconstitutional as it violated the first amendment freedom of speech provisions.

A couple of interesting points about this ruling bear mention:
— first off, the entire law was not overturned; only the paragraph as it pertains to burning a US flag. The rest of the law, which bans destruction of other pieces of property (such as tombstones and religious markers) remains intact to this day. This makes sense, actually, as desecration of a tombstone is vandalism or destruction of someone else’s property. If I burn your flag, rather than my own, you have some recourse against me in terms of arson and theft.
— second, the court questioned why prosecutors chose only to prosecute the defendant based upon this one law, rather than other laws for which a conviction was equally assured (i.e., inciting a riot, destruction of property, vandalism, creating a public danger, etc…)

What this ultimately boils down to is the fact that, the only kind of flag desecration that is not prosecutable under other laws, is the one where I do it to my own flag, on my own property, and with little fanfare or public spectacle. (In other words, one that essentially defies the reason for burning it in the first place…)

I don’t have any love lost for people who would burn the flag. It is an offensive act, to say the least. And they deserve to be spit upon, cursed out, and otherwise made to feel bad for doing it. That said, I don’t have a problem with the fact that they have the right to do it. That’s what makes our constitution so great.

There was a movie released in the early 90’s with Wesley Snipes, Sylvester Stallone, Sandra Bullock, and Benjamin Bratt, called Demolition Man. It envisions a futuristic society where, in the interest of peace, it is illegal to do anything that offends anyone. Wesley Snipes, playing a cryogenically frozen criminal from our time who is brought back to life in this future world, argues at one point that we all have the right to be assholes. I’m an American, and I’m proud that I can be an asshole if I want to be…

I also fear for the people and businesses who unintentionally desecrate the flag by flying it at night, in the rain, such that it touches the ground or the side of a building, or in a state where it would be better served by retiring it. How would they be protected from prosecution in the event that such a law passes?

So I contacted Sen. Specter in hopes that he would have the guts to vote against a proposed constitutional amendment that clearly does nothing more than pander to an ill-advised sense of patriotism. Some people will argue “my country, right or wrong…” Again, that’s one of the great things about my country: I have the right to tell it when it’s wrong…

I was extremely disappointed by Sen. Specter’s response last week. Not only did it come off as a canned response which seemed more appropriate to send to those who support the amendment, but also the only argument he could make was a comparison to yelling “fire” in a crowded theatre.

I always wondered about the fire-in-a-theatre rule. What happens if your seat does happen to catch fire? (I don’t know. Maybe, in lieu of the concession prices, I decide to bring a portable propane grill into the theatre for some burgers and hot dogs, and maybe something slips…) What am I supposed to do? Tap the shoulder of the person sitting next to me and whisper in his/her ear, “My seat’s on fire. Pass it on…”?!?!?

Still, I can respect that any place that gets crowded like that, especially with limited ability to move in two or more directions, can be a death trap when people panic and start to stampede against other people.

But yelling “fire” in a crowded theatre can cause a legitimate danger to other people. Burning a flag, assuming the burn itself is controlled and far enough away from any buildings, will do no such thing. Screaming obscenities at the top of one’s lungs in the theatre is a more apt comparison. People will try to silence the person, ignore him, join him, or worse, but there is nothing inherently illegal about it. Maybe yelling “guacamole” in a crowded Mexican Restaurant is an even better comparison, because then someone might actually have the curiosity to ask why the person did it.

I read somewhere that the majority of flagburning incidents in this country are done in protest of flagburning laws. I don’t know how accurate this factoid is, but it is certainly believable.

I can’t begin to express my disappointment of Sen. Arlen Specter for his support of this amendment.

If you care about this matter, I encourage you to check out Warren Apel’s Flagburning page , which contains a very thorough history of this matter, down to the legal definition of “flag” and why the amendment is such a bad idea. (And it’s frightening to think that a photograph of a child’s drawing of a US flag, with three stripes and two stars, is legally a flag..)


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