How will the law define "flag burning," anyway?
or
I know it when I see it...

Those of us who trust our Government enough to allow them to alter the Constitution are making a few assumptions. One is that flag burning is wrong, and should be an arrestable offense. There's plenty of arguments on that issue, and most of them have been presented ad naseum elsewhere on these pages.

A much more interesting assumption is that the Government will adequately define flag burning. Rep. Gary Ackerman did a terrific job on C-SPAN during the televised debate - he showed us flag-emblazoned boxer shorts and napkins - and challenged us to imagine them being illegal. Of course, the amendment's supporters want us to believe that the Government would never pass a law that would allow the cutting of a flag-colored cake on the Fourth of July to be an imprisonable offense.

But would they?

We won't know for sure unless the amendment passes. Once that happens, the Federal Government and the Legislatures of all 50 states will have uninhibited power to pass any law against flag burning, defined in any way they choose.

Should California decide to ban red, white, and blue bathing suits? If they wanted to, it would certainly be permissable under the "New Constitution."

But, really - what would the law look like? Can't we make a decent guess without resorting to such far-fetched examples as bathing suits?

Yes, we can. All we have to do is look at the U.S. Code from before the Supreme Court case of Texas v. Johnson. This was federal law from 1968 to 1989. This was on the books. Seriously.

18 USC Sec. 700
1989 - Subsec. (a). Pub. L. 101-131, Sec. 2(a), amended subsec.

Prior to amendment, subsec. (a) read as follows:
''Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.''
Subsec. (b). Pub. L. 101-131, Sec. 2(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ''The term 'flag of the United States' as used in this section, shall include any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America."

"Wait a second!" you're probably saying to yourself. "Any number of stars? Any part or parts of either? On any substance? Or a picture or representation?"

You bet. Burning a photo of a drawing of a 3-starred red, white and blue 4-striped flag would land you in jail for a year.

I'm not making this up.

OK. Let's say you don't want to have any part of burning the flag. You're just an honest, used-car salesman who wants to put Old Glory on his brochures for an added touch. No self-respecting, freedom-protecting, democracy would prevent you from doing that, would they?

Let's check out the U.S. Code currently in force in the District of Columbia

4 USC Sec. 3
Sec. 3. Use of flag for advertising purposes; mutilation of flag

Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature; or who, within the District of Columbia, shall manufacture, sell, expose for sale, or to public view, or give away or have in possession for sale, or to be given away or for use for any purpose, any article or substance being an article of merchandise, or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached, or otherwise placed a representation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court.

The words 'flag, standard, colors, or ensign', as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America.

Believe this. Have you seen the Black Crowes album cover for Amorica? American Recordings (whose logo is an upside-down American flag) could get put in jail for a month if they sold that album in Georgetown. Which they do.

In fact, any record store owner within the District could be imprisoned under this law. Wacky, eh?

You want wacky? How's this - prior to amendment in 1968 (that is, from 1947 to 1968 - 21 years) the first paragraph of the above ended like this:

....decorate, mark, or distinguish the article or substance on which so placed or who, within the District of Columbia, shall publicly mutilate, deface, defile or defy, trample upon, or cast contempt, either by word or act, upon any such flag, standard, colors, or ensign, shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court.

Pay attention here, boys and girls. For twenty-one years it was illegal to cast contempt, either by word or act upon the flag. Not just burning, but talking bad about the flag. Uttering the phrase 'darn that silly US Flag' could have conceivably gotten you locked up the Downtown DC hoosegow.

Many of my critics will point out to you that no one will be arrested for simply disparaging the flag. Only the rascally Communist flag burners are going to go to jail. Here are two points I like to make to them. First, many First Amendment scholars believe that if that is the case, arrests will be overturned until every possible non-political flag desecrator is in jail -- only then will protestors be prosecuted. So I won't go to jail for my political beliefs until Barbara Bush goes to jail for her flag hair bandanna. (That's one way to ensure that no freedom of speech is quashed by this law.) Second, Jehovah's Witnesses and others who refuse to salute the flag are committing a desecration (failure to give the flag the respect the law commands.) This desecration is just as illegal as any radical flag burning. These people will all go to jail under the new Constitution. Refusual to salute the flag is considered desecration, but acceptable under the current First Amendment. Any new change to the constitution will supercede the original.

Will anyone be arrested and imprisoned for violating such bizarre laws? Maybe not. But if they are, they will have no recourse under the New Constitution. Any laws that Congress passes regarding flag desecration will be automatically constitutional. And all of the above examples were recently law. Written and enacted by your elected officials.

Do you still trust them to define 'flag?' I don't.

---

Warren S. Apel