The House has yet again approved an amendment to ban flagburning, so I figure it's time to yet again link to my criticism of the amendment. Here's an excerpt:

"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that's not exactly how the proposed flag protection amendment reads — I've added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn't be protected by the First Amendment because it isn't "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I'm wrong, then both should be unprotected. . . .

Click here to see the rest.

Thanks to reader Spencer Macdonald for the pointer.

qetzal (mail):
I'm not much impressed by flag-burning. To me, it says much more about the burner's immaturity and impotence than his/her cause.

Nevertheless, I strongly oppose such an amendment. The right to be openly (even insultingly) critical of our government and country is much too important, and shouldn't be compromised on behalf of symolism.
6.22.2005 8:39pm
mikem (mail):
I served for four years in the Marine Corps many moons ago. As much as I respect the American flag and despise those who burn it, it is THE symbol of our government and nation. I love that I live in a country where free expression includes the ultimate insult to the ultimate symbol of our government. This legislation is unAmerican.
6.22.2005 8:43pm
Jake (mail):
Isn't one of the strong points of legislative governance that laws don't have to fit into some overarching "rational" scheme? The Confederate flag example only makes sense in the context of a court deciding what acts are protected by the First Amendment. As a critique of a constitutional amendment, it has no force.

The logic of the flagburning amendment would lead to an anti-Confederate flag flying amendment, which would be bad? So what? The proposed amendment doesn't have anything to do with the confederate flag, and you're not going to see enough votes to pass the anti-Confederate flag flying amendment.

The anti-flag burning amendment would be a pointless, symbolic gesture whose only utility would be to make some people feel good. Welcome to democratic politics.
6.22.2005 8:46pm
EugeneVolokh (mail) (www):
Well, I tried to respond to Jake's points in my original piece:
Of course, it's likely that the slippery slope will be resisted here, and people will remain free to wave the Confederate flag. But America would be even more endangered by a selective ban on flagburning alone than by a broader ban: Such selective suppression will bitterly divide us, rather than uniting us.

Right now, when people -- mostly blacks -- are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans hate flagburning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments? Would you feel better about America because of them?
6.22.2005 8:59pm
James Rendon:
My 17-year old brother asks the following in regards to flag burning:

Could the U.S. government get a copyright/exclusive patent for the production of U.S. flags, and then procede to merely rent them, not sell them, with the explicit rental contract that you couldn't burn the flag?

I'm sure it wouldn't pass muster, and it's obviously fanciful, but i thought it was interesting.
6.22.2005 9:18pm
I fear, Eugene, that very narrow politics are now in play, and a short-sighted, nay, idiotic amendment designed to rally the troups and to feed a polling fetish (a disease not limited to Republicans) is more important to some than reasonable legislation or, in fact, any kind of guiding theory, other than power.

I wish you luck in spreading the thoughtful critique.
6.22.2005 9:24pm

(1) Patents don't apply. Different beast entirely.

(2) A copyright requires that the object (among other things) be the original creation of the owner, and there are limits before (I think) 1975 requiring them to be registered. And one could argue about the provenence of the flag; the story is well known.

(3) I think you may be thinking of a trademark, but that requires originality, as well as defending it upon dillution.

I have to take out some recycling. Some of the pizza boxes have American flags on them. Does that answer your question?

(And lord knows what the amendment would do to that angle - can I then only recycle "respectfully"? What does that mean? Does it mean no more patriotic pizza boxes?)
6.22.2005 9:30pm
Jake (mail):
I think the original op-ed conflates "logical contradiction" and "bitterly divisive political issue." We had flag-burning bans from at least 1968 (when Congress passed the Flag Protection Act) until the Court struck them down in the late eighties (1989?). As far as I can tell, the country didn't experience any dire consequences as a result.

Is there really an argument that large sections of the black community felt that the existence of the FPA and lack of a corresponding "Confederate Flag Flying Ban" was a major racial issue? If not, what's the point of the dilemma presented of being unable to offer a rationally defensible distinction?

In a democracy, you get the laws you have the votes for, and you don't get the ones you don't. Some days you're the optometrist, and some days you're the optician.
6.22.2005 9:32pm
Jake seems to be forgetting both the use and value of precedent in our legal system.
6.22.2005 9:37pm
Jake (mail):
In an ideal world, the legal system would not have a role in the passage of a constitutional amendment...
6.22.2005 9:48pm
Dan Simon (www):
But America would be even more endangered by a selective ban on flagburning alone than by a broader ban: Such selective suppression will bitterly divide us, rather than uniting us.

Exactly right. Today, Americans can ban false commercial advertising, but not false hate speech; excessive expenditures on partisan political advocacy, but not excessive expenditures on non-partisan political advocacy (according to some highly nuanced definition of "partisan"); incitements to violence, but not violent pornography; the burning of crosses, but not the burning of flags. The government must not fund ordinary citizens' promotion of religion; but it must fund artists' denigration of religion.

But none of this is the slightest bit divisive. After all, it's not democratic. If the voting public were allowed to decide the laws governing the regulation of expression, then they might make decisions that a majority actually prefer. And then the minority would feel slighted.

Instead, the voting public are allowed hardly any say at all regarding the laws governing the regulation of expression. As a result, the majority detest the absurd patchwork of confused, confusing decisions that's imposed upon them by judicial fiat, and the minority, equally shut out of the process, have little reason to rejoice. What could be more unifying?

Thank goodness for First Amendment jurisprudence. It's terrible policy. It's terrible politics. It's crazy. It's inconsistent. But at least it's undemocratic--otherwise, it would be "divisive".
6.22.2005 10:05pm
Robert Schwartz (mail):
The nine old women need to decide what speech is. If actions, such as flag burnning, are speech, then so are actions such as raising and spending money to advertise political candidates. If the later can be outlawed, then so can the former. Otherwise they should acknowledge that they are completely incoherent and we are being tyranized by senile lawyers.
6.22.2005 11:53pm
Anon Agan (mail) (www):
It seems to me that banning the flying of the confederate flag as an act of treason or rebellion is quite fair.

What am I missing?
6.23.2005 12:16am
David Hardy (mail) (www):
So what have you got against prohibiting two forms of treason?

(g-grandson of a vet of the 49th Illinois,
War of the Rebellion)

PS--as regards patent/copyright, whatever, while at Interior it came to my attention that there are federal laws forbidding impersonation of Smokey the Bear and Woodsey the Owl. I looked them up and yes, they are there. Other federal mascots are not protected, which may pose an equal protectionh problem.
6.23.2005 12:26am
It did sort of well up, but, about those pizza boxes - they are real: I looked at them, until I took them down to the recycling.

What is interesting is what happens to them? Is putting them with the trash disrespectful? I was almost an Eagle Scout - I know how to dispose of a flag. I assume people will draw a line between "representation" and "instance", or something. I don't think that helps, as I can certainly disrespect a representation to annoy people as anything else. It only seems right that this serious consitutional amendment will impact retailer's rights to decorate their wares. Otherwise, freedom loving people might be forced to dispose of our honored symbol in improper ways.

Perhaps we should treat flag-disposal in the same way that some communities treat dangerous waste - we can have drop off disposal points for them, or maybe "flag bags", in which unneeded Symbols of Freedom can be deposited for an up-front tax, per bag, payed (via a tax stamp, or something) to properly trained flag-disposal specialists who can pay our respects for us.
6.23.2005 12:55am
Perseus (mail):
Sorry, but I think that Justice Fortas got it right in Street v. New York:

"If, as I submit, it is permissible to prohibit the burning of personal property on the public sidewalk, there is no basis for applying a different rule to flag burning."

"Beyond this, however, the flag is a kind of special personalty. Its use is traditionally and universally subject to special rules and regulations...A person may 'own' a flag, but ownership is subject to special burdens and responsibilities."

"Protest does not exonerate lawlessness. And the prohibition against flag burning on the public thoroughfare being valid, the misdemeanor is not excused merely because it is an act of flamboyant protest."

I'd add that the amendment is also useful to affirm that the nine old geezers on the Supreme Court are not the ultimate arbiters of the meaning of the Constitution.
6.23.2005 1:22am
Perseus (mail):
As for the Confederate flag, since it is a symbol of an unlawful rebellion against the federal government of the United States, not to mention the odious practice of slavery, I have no principled objection to banning the flying of the Confederate flag either. So, yes, both flag burning and flying the Confederate flag should receive no constitutional protection.
6.23.2005 1:39am
htom (mail):
I've long babbled about starting the "First Church of John Moses Browning" whenever it seemed like the Second Amendment was getting too little respect. It looks like we're going to have to add the ritual burning of an American flag to the services, perhaps igniting it by the discharge of a Browning Hi-Power for the 9-ists, or a 1911 for the "There is no way but the way of .45 ACP"ers.

Don't those folk have something either important or useful to do?
6.23.2005 2:05am
Dan Simon (www):
By the way, Eugene, I'm curious--does your divisiveness argument apply to economic policy as well as free speech policy? Should the federal budget be allocated in a non-"selective" way by an unaccountable panel of nine economists, to avoid situations where "we in the majority get to fund projects we like, but you in the minority don't"?
6.23.2005 4:08am
Zorba (mail):
Eh, underlying Professor Volokh's argument is the curious assumption that a reverence for free speech is more important than holding your country together.

It isn't. Free speech lives and dies with the collective will and might to defend and preserve it. The Constitution will not be enforced by God if we the people stop believing in it, stop being willing to sacrifice our blood and treasure to preserve it.

If a goofy dumbass flag-burning amendment is necessary in practise to preserve the social mythology that keeps the Republic cohesive, willing and able to enforce free speech rights for important and not merely content-free "symbolic" speech -- why, let 'er rip. That ivory-tower purists will fret over the principle of the thing troubles me as much as does the traditional uncertainty in how many angels can dance on the head of a pin.
6.23.2005 6:53am
I'm a no-good, bad-attitude chick, I am. First subversive little thing that popped into my head was to arrange the making and distribution of thousands of flag stickers, butt patches, fabric with flags printed on it, and two-color rubber stamps of flags. Then everyone could stick, sew, and stamp their personal expressions of enthusiastic patriotism everywhere. Let a million flags fly. Then the man will have a million separate flag disposal issues to deal with. (grins)

OK, I just woke up. I know the idea isn't completely original. But there's no crime on the books yet making it illegal to "conspire" to desecrate "representations" of the flag as a form of protest of this stupid, stupid amendment.
6.23.2005 7:59am
I don't think you are right that both waving and burning are similar in that they are not "speech."

Not EVERY thing which communicates something is protected. Waving does not cause the same hazards as burning (pollution, health threat, etc). Taking a dump on a flag in public sure sends a message, but we don't allow that. Wait, has the 9th Circuit ruled this one out?

I wonder, can I set fire to my trash in protest to not being able to set fire to it? This line of argument, however, would require general rather than specific laws. Content neural in other words. What do you think? Can someone who burns a flag in public be convicted under a law which applies to any garment or cloth?
6.23.2005 8:23am
Also, I can see your argument if this were the Supreme Court and not Congress, but Congress carving out an exception in a constitutional way, what's wrong with that?

If we all agree that flag burning is bad, that desecrating the symbol of this nation is bad, why NOT make an exception? I mean, your famed slippery slope argument can't be why, right? Because this isn't precedent, it's a specific exception to the rule.
6.23.2005 8:28am
The is no idea that a flag-burning amendment is needed to keep "the Republic cohesive" is illogical. Other than the physical risk from the fire itself, burning a flag is a threat to no one. If anything, banning flag burning would make it a more potent, more widely-used protest.

As a society, we have dealt with flag burning socially and politically. No significant politician would do it. And in almost all circles (especially professional ones), burning a flag would invite social stigma.
6.23.2005 8:30am
Public Defender: If we can survive WITH flag burning, can't we also survive WITHOUT it?

I mean, why oppose this amendment? Again, this isn't legal principle, where one is worried about implications beyond the case at hand.
6.23.2005 8:48am
"Challenge," in support of the amendment, asks whether we can survive without flag burning. But the amendment will not end flag burning — it will start it. The amendment,if enacted, will spark thousands of flag burnings in protest of the amendment. And no one ever talks about another effect that the amendment would have: people will be locked up for the way they express their views. Don't we have enough people in prison for victimless crimes?
6.23.2005 9:11am
Abe (mail):
Dear Mr. Challenge,

Are you implying that Public Defender has burned any flags ?

Anyway, I have used flag burning rhetoric to get the little people to do what I want many times, and it has been quite profitable for me. You people buy it hook, line, and sinker, and it looks like you are going to buy it again.

I think it is sort of neat that people like you want to restrict some forms of expression. Of course, if your views ever come into conflict with mine, rest assured that I will know how to manipulate the little people into trying to ban your views. You would be amazed at how easy it is to demonize people in the eyes of little people.
6.23.2005 9:11am
My point to Public Defender is that society can "deal" with either scenario. Saying society has dealt with flag burning means nothing.

Nobody here is going to try to defend the actual practice. So I am perplexed why prohibiting something which NOBODY is prepared to defend remains controversial. Again, this isn't a case before the Supreme Court. One person has chimed in and said we don't want to make another "victimless crime." But who says anything about lengthy sentencing, if any at all? Maybe that's a legitimate worry. But that's a technical one.
6.23.2005 9:43am
Challenge says that lengthy sentencing is merely a "technical worry." Does "technical" mean "real-life," as opposed to theoretical, like much of this discussion? It won't seem "technical" to the person sitting in prison and having to live with a criminal record when he seeks employment thereafter for the crime of offending some people. And what is "lengthy" to you? Is six months or a year in prison short? Not to those who have endured it.

You're wrong that NOBODY is prepared to defend flag burning. I defend it. It is a legitimate way to express the feelings that an America that imprisons people without filing charges and tortures some of them to death is no longer an America to which one recognizes as his county.
6.23.2005 10:10am
I've applied Intelligent Design reasoning to the flag burning, it's-gulag-no-it-isn't, and other controversies of that ilk and determined that we've run out of real problems. We can now afford to worry only about analogies to, and symbols of, actual problems rather than the problems themselves.

It's a great day.
6.23.2005 10:22am

My argument is that social stigma is a far more effective deterrent to flag burning than a constitutional amendment would be. So if you want fewer flag burnings, you should oppose the amendment.

But if you just want to put "undesirables" in jail, then support the amendment. I'm sure there are rapists and burglars who would be happy to have cops, prosecutors and jailers divert some attention to flag burners.
6.23.2005 10:46am
Marc W:
Two comments (Forgive me if theses were said (and/or refuted) already and I missed it in my quick scan of the comments):

1) If the production of hardcore pornography is protected by the first ammendment, then so should flag burning. The purpose of the first ammendment was to prevent tyrrany by making sure that political expression is not limited. Seems to me that flag burning (however impotent and immature) comes closer to what the ammendment intended to protect than a graphic close-up photo of...well, you get the idea. I believe there's value in protecting political expression, and the flag-burning ammendment is a bad idea.

2) Regarding flags on pizza boxes, I have a couple of questions. Does the ammendment refer to physical flags only (i.e., a colored rectangular cloth with the proper design that can be waved), or also to a piece of paper with the flag's pattern on it? What about a piece of paper with a stars and stripes design that evokes the flag, but isn't really the flag's design? What about a physical flag that looks a lot like the Old Glory, but isn't really. If the ammendment passes and flag-burning is illegal, can I create something that looks a lot like the flag (but has only 11 stripes), burn it and then plead innocent because what I am burning is not actuall the American flag?
6.23.2005 10:48am
Justin (mail):
How can a jurisprudence that hates the concept of hate crimes (where the "bad intent" of the act is a crime within itself) fail to equally hate a crime banning flag desecration (presumably, burning the flag as a symbol of respectful disposal will still be permitted, even encouraged).
6.23.2005 10:48am
Larry88 (mail) (www):
The amendment refers to "physical desecration" of the flag. This probably means that there must be an actual "flag" which, I guess would be defined by statute.

However, because, I if this gets passed, I am definitely going to use this to persecute my political and business enemies, you can bet that I am going to do my best to make sure that any rival pizzeria will face federal charges.

Oh, veterans' groups will have a fine time accusing each other of descreting flags when they burn them.
6.23.2005 10:53am
If the flag-burning amendment is passed, how long before Congress passes a law making the burning of a flag in protest a crime? It is unimaginable that Congress would punish such a dire threat to the established social order by a mere fine; we will have flag-burners serving time in a federal prison. See if you can get odds on this bet in Vegas: If the flag-burning amendment passes, there will be a new statute on the books within a year, and within the following year, we'll have a flag-burner in jail, following circus of a trial. Of course, the circus outside the courthouse as the guilty verdict is announced will be broadcast worldwide by Court TV, the BBC, al-Jazeera,and others. This might be the one time that Iran, Cuba Saudi Arabia, North Korea and China allow the uncensored broadcast of US news coverage, not only among their ordinarily oppressed citizens, but also into their prisons. How will it feel to be known around the world as the jailer of prisoners of conscience, rather than their beacon of hope? This is a very bad idea.
6.23.2005 12:49pm
It's funny watching many squirm and try to come up with a rationalization. Yes, our prisons will be overflowing with "prisoners of conscience" and the Iranians will look down us.

You. Have. Got. To. Be. Kidding.
6.23.2005 2:10pm
Joe Liu (www):
I doubt that the republic will stand or fall on the presence or absence of a flag-burning amendment. (How many flags are burned every year? Is this a serious problem?). And I guess I'm not that concerned about a sudden rash of speech-related amendments.

My objection to the amendment is simply that it's an attempt to censor speech that is critical of the government. One of the things that distinguishes the U.S. from a lot of other countries is that one can freely critize the government, sometimes rudely and profanely, and be confident that he or she won't be locked up.

To those who think that flag burning is not speech, why do you think people want to ban it? Isn't it precisely because of the message that the act sends?

To those who think that flag burning should be banned because it is profoundly upsetting to people, speech is often profoundly upsetting. Are we so delicate that we have to be shielded from upsetting viewpoints? (BTW, I also oppose hate speech laws, too).
6.23.2005 2:35pm
Spj (mail):
I think there are two conflicting views on flag burning:
1) it is an act of fury against politics (aka free speech), done so as to reform/improve the country.
2) it is an act of disgust towards one's own country, and comes across as a symbolic repudiation of citizenship.

It is this digust towards country vs digust toward politics that is confusing.

Now if protestors burned the GOP or DNC flag or the presidential flag (if they existed, that is), the subject of digust (party or branch of government) would be clear. And, I proffer, not very controversial.

But protestors don't do that kind of targeting. They protest against a symbol of the whole country, rather than a symbol of the people or groups running it.

If someone burned and stomped on a flag in their backyard (by themself), you'd probably think digust of country (#2), way before viewing it as political speech. Or more likely: "Dude, you got issues".

Ever seen pictures of foreigners burning the US flag? They do it for reasons of hatred against the US (#2), not because they want to improve the US (#1).

It is so easy to transfer that same feeling when seeing Americans burning their own flag. Sure, they may be wanting to change the system, but based upon the tenor of past occurances, the negativity of the act tends to come across as symbolic repudiation of citizenship.

And given how easily liberals wanted to flee the country after the 2004 election (and let's mention the elephant in the room: it is mostly liberals who burn the flag), it is hard to not tie the behaviors together and view it as disgust of country.
6.23.2005 2:50pm
vicstich (mail):
How can anyone support this amendment, or even stomach the fact that Congress is spending its time on this jingoistic nonsense. It is fundamentally unamerican to want to squash demonstrations simply because you don't like their content.

"So I am perplexed why prohibiting something which NOBODY is prepared to defend remains controversial."

Then move to another country where loyalty is owed to the country rather than the other way around. You'll like it there, I can tell.
6.23.2005 3:06pm
Does anyone believe that passing a flag burning amendment would actually decrease flag burning? My guess is that the opposite would be true.
6.23.2005 3:46pm
Larry88 (mail) (www):
Challenge, let me be quite clear: I intend to use any laws about flag burning to my political and financial advantage.
6.23.2005 3:57pm
Dan Simon (www):

This legislation is unAmerican.


"So I am perplexed why prohibiting something which NOBODY is prepared to defend remains controversial."

Then move to another country where loyalty is owed to the country rather than the other way around.

Funny--I remember the days when opponents of flag-burning were the ones who shouted "America--love it or leave it!", and called anyone who disagreed with them "un-American". I guess the language of entrenched establishments is always the same....

Abe: You would be amazed at how easy it is to demonize people in the eyes of little people.

Then again, demonizing the majority of the population in the eyes of the "little people" of the Supreme Court--and in Abe's eyes, as well, it seems--turned out to be remarkably easy.

Larry88: I intend to use any laws about flag burning to my political and financial advantage.

And how does this distinguish "any laws about flag-burning"--including the current Constitutional protections of it--from any other law?
6.23.2005 6:41pm

You've articulated the rules of present law. But might of Congress have the power to change them short of a constitutional amendment?

For example, one possible basis for a law creating a national property-like interest in the flag's image might be a war measure under the war power. One could look at the flag as nothing more than a military communications device analogous to uniforms, codes, or ordnance. One could think of the first verse of the Star Spangled Banner would be nothing more than a simple request for military intelligence and the flag as a simple military communications device. If Congress can take over railroads and telephone lines as a war measure, why not lower-tech communication channels such as carrier pigeons or, for that matter, flags. If flags, why not a particular set of flags, perhaps only a single one, with specific military significance?
6.23.2005 9:11pm
Andrew J. Lazarus (mail):
If this Amendment becomes law, I think it would be my patriotic duty to start burning flags.

Karl Rove has made it quite clear that dissent is unpatriotic, the more so when his divisive stupid military adventure is floundering. The ritualization of false patriotism is just another step.
6.23.2005 11:40pm
mikem (mail):
Simon: There is a huge difference between calling proposed legislation unAmerican and calling an individual or group the same.
6.24.2005 10:35pm
Ben Masel (mail):
The Texas "Desecration of a Sacred Object" statute overturned in Johnson forbade defacing the Confederate, Texas and US flags.
6.26.2005 10:23am