The skepdick saw this picture going around his Facebook feed this Memorial Day weekend and wondered about the veracity of flag desecration laws, including this one from Arkansas. Is it really illegal to defile, burn, place on the ground, or trample a flag of the United States? Wouldn’t this be the antithesis of the foundation of our Constitution? Or does this country have a law that protects people’s feelings and intangible symbols? Let’s dig into some legal statutes and see what the Supreme Court has to say about this issue and whether or not you can be arrested for wearing this sweater.
This was another flag “scandal” of the weekend. The number of people who were outraged by this upside down flag on a t-shirt proved too much for PacSun so they removed it from their stores and issued an apology for their distasteful choice. I wonder how many people are “outraged” by this woman’s bikini.
Just last year we had an issue where school officials were upset not by an American flag appearing on clothing, but how that American flag might offend Mexican students celebrating a Mexican holiday. When did we become a country that is obsessed with hurt feelings?
The flag of the United States with its red and white stripes and white stars on a field of blue was first adopted by the Continental Congress in 1777 (likely not designed by Betsy Ross contrary to popular opinion, most historians think it was actually designed by Francis Hopkinson*). Over the years, a specific code for how to respect the flag was compiled, but no penalty was initially mandated for failing to comply with it. If one wishes to show respect, one follows the code. Should the government have the power to punish people for failing to show respect? Part of the code states that the flag shall not be used as apparel, nor advertising, nor as a container. Umhmm.
In the 19th century the Stars and Stripes was mostly used by the U.S. Navy but after the Civil War it became popularized more as a symbol of the country. Adam Goodheart writes in his book about the Civil War, “As the long winter of 1861 turned into spring, that old flag meant something new. The abstraction of the Union cause was transfigured into a physical thing: strips of cloth that millions of people would fight for, and many thousands die for.” The flag became a symbol of Americanism, and, as often happens with ubiquitous symbols, by the turn of the century many people believed it was being abused both politically and commercially (albeit I doubt it was as pervasive as today (see above Budweiser ad)). Thus, by the 1930’s every state had adopted flag desecration laws, much like the Arkansas code 5-51-207, to protect this precious symbol of nationalism.
In 1968 the federal government got into the game with its own flag protection act – after some lawmakers grew tired of anti-Vietnam protesters burning flags in protest – and over the years modified it to narrow the scope of the law. But, it wasn’t until 1989 when the Supreme Court finally ruled on the constitutionality of flag desecration in Texas vs. Johnson where they decided (rightly) that flag desecration is protected under the First Amendment and that freedom of speech and freedom of expression are one and the same.
This ruling immediately invalidated all the individual state laws prohibiting flag desecration and in the aftermath many states repealed their laws. For example, where I live in Illinois, public act 97-1108 repealed the flag desecration act and, according to the 2013 supplement of the Arkansas code, 5-51-207 was, in fact, repealed as well (man, legal codes are some confusing shit).
5-51-207. [Repealed.] Publisher’s Notes. This section, concerning
contempt for or desecration of the United States flag, was repealed by Acts
2013, No. 1348, § 6. The section was derived from Acts 1919, No. 64, §§ 1-3; C. &
M. Dig., §§ 2315-2317; Pope’s Dig., §§ 2941-2943; A.S.A. 1947, §§ 41-2971 —
41-2973; Acts 1989, No. 842, § 1; 19B9 (3rd Ex. Sess.), No. 75, § 1.
Not to be dissuaded by the Supreme Court ruling, many Americans are still pushing for the only thing that trumps the Court: a constitutional amendment. Luckily, numerous times since 1989 Congress has rejected a constitutional flag desecration amendment by failing to acquire two-thirds majority vote, although they have been able to attain a simple majority in its favor. No doubt they’ll try again soon.
Alright, so it’s not illegal to desecrate the flag. That doesn’t make it a respectful or tasteful thing to do, however. The flag is a symbol. A symbol of freedom, and the very freedom that it represents ironically supports those who would desecrate it. It’s understandable how a person can be deeply offended by such desecration, but keep in mind that the flag is still just a piece of cloth (or whatever inanimate object it happens to be) and the offended person’s faith in our country isn’t diminished. People who wish for laws protecting the flag remind me of people who want laws preventing gay marriage or laws preventing the drawing of cartoons. It may harm your feelings but ultimately does nothing more than that. What we don’t need in this country is more laws where the government takes away our freedoms.
Flag desecration in name or in deed certainly evokes strong feelings and emotions. Ask any veteran how they feel about someone burning the flag and I bet they suggest burning that person right back and stomping on their ashes. I get it. I understand having strong feelings for this country and our flag is a unique symbol with strong associations towards patriotism. However, what makes the United States so great is the fact that we are free to have our own opinions and the freedom to express those opinions. What we do not have is the freedom to not be offended. We do not have the freedom to not have hurt feelings.
Free expression is and should always be protected by the Constitution (with exceptions of course: yelling fire in a crowded theater, urging for the direct harm of another, or directly inciting a riot), but burning or otherwise desecrating such an albeit unique and valuable symbol, a symbol that at its core is an iron ball of freedom, as distasteful and sickening as it may be to some, must remain a free and legal action. There is no such thing as a sacred item and there shouldn’t be laws against desecrating any privately owned object or idea or ideology. Any idea can be challenged and we should be free to do so. Ultimately the flag is a symbol, and if someone desecrates that symbol, it may hurt your feelings, but it doesn’t diminish your patriotism, although it may seem to diminish theirs.
What makes this country great is that it is the land of the free and the home of the brave. People are free to burn a flag and other people are free to ask them why they are doing it. Flags aren’t burned for no reason and if we talk about why it’s happening rather than suppressing people’s freedoms maybe we can make this a better place to live. I love this country, and it has its share of problems, but worrying about how someone else decides to non-violently express themselves shouldn’t be one of them. Let’s worry about what drove them to choose that form of expression. If you are bothered by someone desecrating a flag, learn this little known stanza of the Star Spangled Banner and sing it out loud to them:
On the shore, dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner! Oh long may it wave
O’er the land of the free and the home of the brave!*
Try singing that without getting goosebumps. But, if poetry’s not your style, there’s always this:
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