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Maryland lawmakers nix flag-desecration proposal

Phillip Taylor
Special to The Freedom Forum Online

03.10.00

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As home base for the U.S. Naval Academy, Annapolis, Md., draws more than its share of flag burnings. Del. David Boschert, R-Anne Arundel, says he knows he can't stop such protests but had hoped to end such actions on state property.

"They can still do it on city-owned land if they want the State Capitol as a backdrop," Boschert said in a telephone interview. "But I just don't think they should do it on state-owned property."

Boschert tried and failed to get a measure passed during this legislative session to prohibit flag desecration on state land. The House Judiciary Committee last month voted 12-8 against the measure.

A number of lawmakers voted against the measure on First Amendment grounds, but a few disapproved because an existing state law already places much greater restrictions on flag desecration than Boschert's bill.

Although the U.S. Supreme Court has ruled twice — first in the 1989 case Texas v. Johnson and again in the 1990 case U.S. v. Eichman — that flag-desecration laws violate the First Amendment, many states still have such laws on the books.

Maryland, for one, retains one of the nation's strictest flag-desecration laws. That law criminalizes the mutilation or alteration of any national or state flag especially if such action is intended or causes "an imminent breach of the peace."

Boschert said that his bill, unlike the current state law, would pass constitutional muster because it would impose a legitimate time, place or manner restriction on flag desecration, not an all-out prohibition. Boschert said his bill wouldn't have prohibited all acts of flag desecration. Protesters could still burn flags but would have to do it on city property.

"That's where I was coming from, but that all fell on liberal ears," he said.

Suzanne Smith, legislative director for the Maryland chapter of the American Civil Liberties Union, said Boschert's bill targeted constitutionally protected expression. She said the bill failed to impose legitimate time, place or manner restrictions because it would be based on the content of protesters' speech.

"While I appreciate the really strong feelings of veterans for the flag, I believe the U.S. Constitution is more than the sum of its parts," Smith said. "The flag is a symbol of freedom, but ultimately it's just a symbol."

Catherine LeRoy, a spokeswoman for People for the American Way, said restrictions such as those suggested by Boschert, go beyond reasonable limits "to penalize the destruction of something for expressive purposes."

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