June 24, 2005

The Flag Amendment and the American Legion.

Filed under: Uncategorized — Jim @ 10:34 pm

Flag burning.jpgYesterday the House voted for adoption of an amendment to the Constitution that would outlaw flag desecration, “flag burning” being the words that are customarily used by the proponents of the amendment to fire up emotions and garner support. Previous attempts to amend the Constitution have failed in the Senate, and, in my view, that’s a good thing.

I have never supported such an amendment, because I believe, as the Supreme Court noted in its opinion in Texas v. Johnson, that flag burning (as despicable as I find the act) is a form of speech, which is and must remain protected by the First Amendment.

“But, wait!” the amendment’s supporters urge, “There is no First Amendment issue, because flag burning isn’t speech! It’s conduct, and that’s what we want to ban.”

I disagree. The act of flag burning (the kind that makes everyone angry, as opposed to, say, the ceremonial retirement, by burning, of worn flags conducted by veterans’ and fraternal organizations) is obviously conduct, but there can be no doubt that it is conduct intended to communicate a message. Supporters of the Amendment would be hard pressed to suggest otherwise, given that the it is the very message intended to be conveyed by flag burning that has the supporters of the amendment riled up.

In the communicative sense, flag burning is only different in degree from the display of the middle finger in anger or defiance. Flipping someone the bird is, after all, “conduct,” but its communicative message is crystal clear, which is to say, it constitutes “speech.”

The American Legion, an organization of which I am a proud member, has collected a small fortune from its members in support of its campaign to have the amendment adopted. It has also engaged in massive lobbying efforts to seek support for the amendment, which efforts, in my view, could have been better directed toward the advocacy of issues that could actually help veterans.

As part of its relentless campaign, the Legion offers up poll results that show that more than eighty percent of the people in the country support the amendment. Of the poll, the American Legion National Commander has said:

“When asked a straight forward question, most Americans will give you a straight answer – Protect Old Glory.”

Here are the “straightforward” questions he referred to:

1. “How important do you think it is to make desecrating the U.S. Flag Against the Law? Extremely important, very important, somewhat important, or not important at all?”

2. “Do you favor or oppose the passage of a Constitutional amendment that would allow Congress to enact laws to protect the U.S. flag?” The possible responses were: “strongly favor, somewhat favor, somewhat oppose, strongly oppose, and “don’t know.”

3. “Would you likely vote for someone who is opposed to protecting the U.S. Flag?” The possible responses were, “yes, no, and don’t know.”

I think it is more accurate to say that the best way to get the answers you want on a survey is to ask emotionally loaded questions that relate to a complex issue and only permit “simple” answers.

I believe that even a good number of long-time American Legion members would not be so quick to support the amendment, if they were to take the time to consider what potentially can happen if such an amendment is passed.

For example, over the past few years, I have had something resembling the following exchange with many Legionnaires:

Me: “How would you feel if some day Congress passed a law making it a crime to wear a Legion Cap?”

Him: “Don’t be silly. Congress couldn’t do that. That would violate our constitutional rights.”

Me: “Are you talking about your First Amendment rights?”

Him: “Absolutely.”

Me: “Wait a minute. Wearing a cap isn’t speech: It’s conduct, no?”

Him: “Huh?”

Me: “You said that congress could outlaw flag burning because flag burning isn’t speech, but rather it’s conduct. And I’m asking how is flag burning different from wearing a Legion Cap?”

Him: “You’re being ridiculous. You can’t equate burning Old Glory with wearing a Legion Cap. It’s different.”

Me: “Well, let me ask you this. When you wear your Legion Cap, do you wear it to keep your head warm?”

Him: “No. They’re not even good for keeping your head warm.”

Me: “Isn’t it more accurate to say that when you wear your Legion Cap, you are saying something? By wearing the cap, aren’t you letting the world know that you are a veteran who served in time of conflict, that you’re proud of your service and the service of others, and that you support causes that improve the lives of veteran’s in general?”

Him: “I suppose so.”

Me: “So, both you and the flag burner are each ‘saying something,’ he by burning a flag and you by wearing a Legion Cap. So, again I ask you, how you would feel if Congress passed a law prohibiting you from wearing your Legion Cap?”

I wish I could report that at the end of these dialogs, the “Him” always said, “You’re right. I hadn’t looked at it that way before.” The good news is that more than a few do say something just like that. Unfortunately, many simply say, “I don’t give a damn what you say. I want Old Glory protected.”

I believe that the American Legion should rethink this issue, but given the amount of monetary and political capital that the organization has invested in getting the amendment passed, I doubt that it will happen.


  1. .. indeed, friend… I had the same conversation with my VFW cousin today… this is the slippery slope…

    Comment by Eric — June 25, 2005 @ 1:12 am

  2. Excellent!

    You’re absolutely right, of course.

    Comment by rita — June 25, 2005 @ 6:36 am

  3. Grand Old Flag

    I’ve been following the ‘ban flag burning amendment’ debate this week. Frankly, I think such an amendment is absurd, and…

    Trackback by Res Ipsa Loquitur — June 25, 2005 @ 6:57 am

  4. And Besides, Congress Has Better Things To Worry About

    Jim at Parkway Rest Stop has a superlative flag burning post that’s a must read if you are at all confused over why such an Amendment, or law, would be wrong. He’s a member of the American Legion, which has raised money and campaigned for such a…

    Trackback by Accidental Verbosity — June 25, 2005 @ 9:04 am

  5. If one raionalizes to the extent that flag burning is protected by that first amendment (free speech).
    One could use the same reasoning to conclude that a political assassination is also a first amendment right.


    I just want this thing to go away….

    Flag burning is a political statement, and should be allowed in the ‘land of the free’.

    Comment by GrampaPinhead — June 25, 2005 @ 1:28 pm

  6. People really need to go and watch the American President…It’s so very hard to watch people argue over petty issues while troops are fighting and dying every day and major econimical and societal issues go unresolved. I wish our country could get its act a bit more together. Total agreement here on your post jimbo!


    Comment by Joshua — June 25, 2005 @ 2:04 pm

  7. The Legion needs a better way to promote respect for the flag, a worthy goal. The amendment is a non-starter. It’s just wrong. Good post, Jim.

    Comment by Sluggo — June 25, 2005 @ 4:52 pm

  8. Honor the Flag

    No one can accuse Jim, of Parkway Rest Stop, of being soft when it comes to his flag, his country and his contempt of all things moonbatty.

    Trackback by Sluggo Needs a Nap — June 25, 2005 @ 5:05 pm

  9. Just out of curiosity, would splashing a lot of gasoline around onto people threatening to burn a flag be considered “conduct” or “speech”?

    I could argue that I would be communicating the message “You’ll burn before this flag does, pal”. Is that an ethical message or a political one?

    That having been said, I think an Amendment to prevent what is, in essence, a religious rite of voodoo (equivalent to those dolls that get pins poked through their waxen hands) is not the way to go about it.

    The correct way to go about it? Point and laugh, or point and shake your head in disgust, but let it go…

    Comment by Drumwaster — June 25, 2005 @ 11:30 pm

  10. Are you friggin nuts??!!

    No way in hell should anybody be allowed to burn the flag! People fought and died for the flag. I’ve got one on the bumper of my pickup truck and if anybody…

    wait, just found out we’re talkin about the American flag. I’m OK with that. For a minute there I thought you were talkin bout burnin the Confederate flag. Really Jimbo, you ought to be more clear about these things.

    Comment by Dan — June 26, 2005 @ 5:59 am

  11. Revisiting the Flag Amendment

    Jim, from Parkway Rest Stop, absolutely nails my feelings on the the flag burning debate and does it in the context of an American Legion member who disagrees with the Legion's push for the amendment: Me: “Isn’t it more accurate to …

    Trackback by ResurrectionSong — June 27, 2005 @ 2:17 pm

  12. I agree with your conclusion – that a ‘flag-burning’ amendment is not a good thing – but I disagree with your argument.

    Burning a flag is, in your analogy, no different from flipping someone off. I’ll grant the analogy, but note that flipping someone off can get you fined. Both behaviours are conduct, and both are unnecessary to communicate the intended message (I think flipping someone off qualifies as ‘provocation’ or ‘fighting words’). Police authority should be sufficient in both cases, with no questions of fabricated rights to ‘free expression’.

    I just have a serious problem with mucking about with the U.S. Constitution to regulate an issue better handled at the state or local level.

    Comment by aelfheld — July 2, 2005 @ 8:03 pm

  13. The American Flag is a symbol of the blood and tears that were spilt to ensure our freedom as Americans. The idea of someone
    wanting to descecrate the American Flag by burning it makes me furious. In my opinion,burning the American Flag is not a
    freedom of speech or a form of civil rights it’s just plain vandalism.

    Comment by Darin Lee Taylor — May 29, 2006 @ 3:14 pm

RSS feed for comments on this post.

Leave a comment

Powered by WordPress