Flag Measure Down, But Probably Not Out

The flag amendment failed to pass this year, but backers, such as Senate co-sponor Orrin G. Hatch, haven't given up

I FAVOR a Constitutional amendment to empower Congress and the states to prohibit the physical desecration of the American flag. I do not measure anyone's patriotism or love of the flag on the basis of individual support of, or opposition to, an amendment.

But I sincerely believe that the opponents of the amendment have, in good faith, posed a false choice to the Congress and the American people. In effect, they say that if you want to protect the flag from desecration, you have to trample on the First Amendment. If you want to safeguard the First Amendment, you have to let desecrators trample on the flag.

I sincerely believe we face no such choice.

Everyone acknowledges the uniqueness of the flag. Justice Stevens, in his Texas v. Johnson dissent, put it best: ``A country's flag is a symbol of more than nationhood and national unity. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas.''

We all know what the American flag signifies to Americans and to people all over the world. There is no other flag in the world like it.

In my view, the flag amendment would not amend the First Amendment. It overturns two Supreme Court decisions which I believe were wrongly decided. By overturning this judicial gloss, we restore the First Amendment to its original meaning in this area.

For years, 48 states and the federal government prohibited flag desecration. Was freedom of speech violated in this country all those years? I think not. The prohibition of such conduct prevented no idea from being expressed in numerous ways.

Distinguished jurists regarded as great First Amendment champions agreed that such conduct did not fall within the ambit of the First Amendment.

Chief Justice Earl Warren wrote, ``I believe that the States and the federal government do have the power to protect the flag from acts of desecration and disgrace....'' Justice Hugo Black - generally regarded as a First Amendment absolutist - stated, ``It passes my belief that anything in the federal constitution bars a state from making the deliberate burning of the American flag an offense.'' Justice Abe Fortas wrote, ``The States and the Federal government have the power to protect the flag, from acts of desecration committed in public....''

The line between freedom and license is not always easy to draw. I agree with Justice Stevens' remarks in dissent in US v. Richman, which overturned the recent federal statute: ``This [issue] ... comes down to a matter of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective ... outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value.''

In my view, the balancing of these factors comes out in favor of protecting the flag. The failure to do so, in my opinion, devalues the flag. We will be implicitly, if unintentionally, saying that the flag and what it represents are not as important as our rhetoric universally has suggested they are in the past year.

I believe the failure to persist in enacting a constitutional amendment to protect the flag would express a startling lack of confidence in our freedoms.

Critics of the proposed amendment use backward logic. They say, Is the flag really threatened by these flag desecrations? I say, Is our freedom of speech threatened by the withdrawal of this one, single, solitary but revered object from desecration? To ask that question is to answer it: of course not. And since it means so much to so many, for reasons we all understand and share, shouldn't we protect it from any acts of desecration, however few or many? I say, yes.

We are not on a slippery slope of any sort, because no one seeks similar protection for any other object. Moreover, prohibiting flag desecration does not compel anyone to worship, salute, carry, or praise the flag, or do anything else to support the flag.

I believe we would do no damage to the First Amendment by enacting the president's flag protection amendment, which furthers a worthy goal.