Fire still lit on flag-burning issue
Professor, veteran weigh in on proposed constitutional amendment
The Stars and Stripes will flutter from the facades of hundreds of Lawrence homes and businesses on Tuesday. Since the late 1800s, Americans have set aside June 14 as a day to honor the flag that represents their nation.
But just how much protection the red, white and blue banner at the center of Flag Day should have under federal law is a matter of continued debate.
Earlier this year, Sen. Orrin Hatch, R-Utah, and Rep. Randy Cunningham, R-Calif., proposed a constitutional amendment that would outlaw desecration of the American flag.
This newest proposal is just the latest in a battle about freedom of expression and the flag that erupted after the landmark 1989 Supreme Court decision Texas v. Johnson, in which the court determined that burning an American flag was an act protected by the First Amendment.
In the wake of that decision, a number of proposed constitutional amendments to ban flag burning and other forms of desecration have made their way to the floors of Congress. The House of Representatives has passed the amendment on several occasions, and the amendment has come to a vote twice before the Senate, narrowly failing both times.
The most recent amendment is expected to come up for a vote as well. So why has the issue persisted in Congress for the 15 years since the Texas v. Johnson decision came down?
Kansas University journalism professor Ted Frederickson, who teaches a course on the First Amendment and society, said he understood why the movement to ban flag desecration continued to have clout, even though he disagrees fundamentally with the premise of the proposed amendment.
“It’s politically popular, and I understand why,” Frederickson said. “People don’t like to see the flag trashed, and I don’t like it either. I also don’t like to hear racists or Nazis or people like that. But they all have the right to express themselves.”
The problem with the attempts to ban desecration of the flag, Frederickson said, is that they clearly infringe on the right to freedom of expression guaranteed in the First Amendment. The proposed amendment also is problematic, he said, because it is targeted at eliminating only desecration that would carry negative messages about the United States.
“For example,” Frederickson said, “someone who burns a flag to protest U.S. policies could be jailed, while Boy Scouts or soldiers who sing the National Anthem and burn old flags in retirement rituals would be praised for their patriotism.”
Veteran’s point of view
But to Jake Trybom, the commander of the Lawrence post of the Veterans of Foreign Wars, protecting the flag with a constitutional amendment makes perfect sense.
As a 13-year veteran of the Marine Corps, Trybom has experienced firsthand the incredulity many soldiers feel when they see the symbol of the land they risk their lives to protect being tarnished. While stationed in Southern California, Trybom witnessed a rally where protesters dragged flags along the ground and wore them as capes.
“I was in anger and disbelief,” Trybom said of the incident. “I just couldn’t believe that these are people claiming to a be Americans doing this to the symbol of our country. It was very hurtful.”
While veterans groups are typically the most outspoken proponents of flag legislation, some veterans do side with Frederickson. Trybom took an informal poll of 25 members of the Lawrence post and said roughly 75 percent of them voted in favor of the amendment, with the other 25 percent against.
As for the conflict of interest between the First Amendment and a ban on flag desecration, Trybom said he didn’t think the framers of the constitution had protecting flag burners as a priority when they adopted the Bill of Rights.
“Our forefathers, I doubt they had in mind that at some point in time the desecration of the flag was going to be protected by the Constitution they were writing,” Trybom said.
Frederickson, however, contends that the framers were trying to protect the rights of those who hold minority viewpoints, no matter how unpopular.
“Sending people to prison for using the flag to express their views – even views we may not like – desecrates the core values that our flag symbolizes, namely freedom of speech,” he said.