If Flag Desecration Is a Crime, What Is Prohibited?

Attempts to ban flag desecration, either through statute or through constitutional amendment, would ban much more than most people seem to realize. Usually people only think about trying to stop burning the American flag, but the truth is that past and current laws against flag desecration cover far more than just burning the flag. Perhaps if people thought more about just what they are outlawing, they wouldn't be so quick to support flag desecration bans.

Ever since the Supreme Court, for a second time, struck down a law banning flag burning and desecration, opponents of free speech have realized that mere legislation would not accomplish their goal. They have, instead, fought for an amendment to the Constitution allowing them to make a crime of desecrating the American flag. Most assume that this would merely ban flag burning, but they are wrong. The consequences of this amendment passing could be far-reaching and disastrous.

The text of the proposed amendment reads:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Some may think it is hyperbole to say that those fighting for a flag desecration amendment are "opponents of free speech" and that passage of this amendment could be "disastrous," but the truth is made clear when we consider just what "flag desecration" can mean. There are, of course, many problems with defining "flag" and "desecration," but we can set these aside to consider just what has been banned by flag desecration laws in America in the past—and especially what sorts of laws are currently on the books today.

It would be unreasonable to assume that any future laws passed under the authority of the flag desecration amendment would not be modeled on what currently exists. It would be naive not to assume that, at some point, such laws would also look more like the worst currently available, rather than the best.

The text of the proposed amendment is broadly worded and we should not expect it to always be read narrowly; instead, we should consider the broadest possible interpretation and ask whether we really want to give our government leaders the authority to pass criminal laws under such an interpretation.

Examples

So, what might our government criminalize if we give them the authority to prohibit physical desecration of the American flag? Here is a list of things which are just as much a crime under many or most state laws against flag desecration. In theory, all of these can carry the same penalties—the same fines and the same jail time—as burning a large American flag in the town square during a raucous political protest:

• Burn a piece of a flag
• Burn a photograph of a flag
• Burn a drawing of a flag
• Burn a painting of a flag
• Burn a photograph of a painting of a flag
• Burn a flag with 48 stars
• Burn a flag with 11 or 15 stripes
• Burn a flag with 13 stars arranged in a circle

• Rip the flag in half
• Paint a flag on a piece of glass and break the glass
• Put a big red X across a flag made from frosting on a cake
• Put the flag on the ground and step on it
• Draw the flag in chalk on the sidewalk so people can walk over it

• Paint the flag on a bench for people to sit on

• Put a peace symbol on a flag
• Replace the stars with peace symbols
• Replace the stars with hearts
• Replace the stars with crosses
• Replace the stars with corporate logos
• Replace the stars with the the Confederate "stars and bars"
• Put a swastika on the flag
• Your child doodles on the flag but you hang it out anyway

• Write the words "Under God" across the flag
• Write the words "God Bless America" across the flag
• Write the words "One Nation, Indivisible" across the flag
• Write the Pledge of Allegiance across the flag

• Put an image of praying hands on the flag
• Put an image of an eagle on the flag
• Put an image of the president on the flag
• Put a company logo on the flag

• Put the flag on an advertisement for beer
• Put the flag on an advertisement for cars
• Put the flag on a mug for sale

• Put the flag on a t-shirt for sale
• Put the flag on a shopping bag
• Put the flag on underwear

• Put flags on fireworks casings and ignite them
• Put a flag on paper napkins or plates and use them
• Put a flag on a disposable table cloth for a Fourth of July picnic and throw it away after use

Casting Contempt

The following would not qualify as "physical desecration," but they would be a crime under current state laws which also equally prohibit casting contempt on the American flag "by word" as well as by act:

• Speak evilly about the flag
• Speak contemptuously about the flag
• Cast contempt upon the flag by words
• Use words to bring the flag into disrespect