State officials seldom give up on flag-desecration laws
By Phillip Taylor
Special to freedomforum.org
Although more than a decade has passed since the U.S. Supreme Court deemed flag desecration a protected form of speech, most states keep flag-protection statutes on the books.
And some, on occasion, even continue to enforce them.
There's the infamous case of the Wisconsin teen-ager who defecated on a U.S. flag and was convicted for trespassing and other offenses. But the charge under the state's flag-desecration law was dropped on free-speech grounds. And there's the South Dakota man who faced two efforts to prosecute him for burning a flag after police broke up a party.
Over the past year alone, lawmakers in at least three states have addressed flag desecration. For example, a Missouri legislator last December proposed a state statute that would allow the use of physical force to prevent the dishonorable destruction of the flag.
Robert Goldstein, a political science professor at Oakland University and author of four books on flag desecration, says he's not surprised at continued efforts to ban defiling the flag. But he says it's very clear that such flag-protection laws are unconstitutional.
Even the Citizens Flag Alliance, the leading supporter of efforts to protect the U.S. flag, notes that state flag-protection laws are invalid. But the group hopes the successful passage of a constitutional amendment would revitalize them.
Today, Sens. Orrin Hatch, R-Utah, and Max Cleland, D-Ga., and Reps. Randy "Duke" Cunningham, R-Calif., and John Murtha, D-Pa., quietly introduced the flag amendment in both the Senate and the House. The amendment reads: "Congress shall have power to prohibit the physical desecration of the flag of the United States."
The concept of protecting the U.S. flag from desecration enjoys considerable support in the states. To date, 49 state legislatures have passed resolutions supporting congressional efforts to amend the U.S. Constitution to allow laws protecting the flag.
Vermont remains the lone holdout, although the state Legislature currently is considering passing such a resolution.
Most supporters and opponents of the flag amendment agree that only revisions to the U.S. Constitution would enable Congress or the states to enforce flag-protection measures. The Supreme Court, both in Texas v. Johnson in 1989 and U.S. v. Eichman in 1990, determined flag-burning to be protected speech.
Although the high court twice invalidated state flag laws, 47 states still have statutes, many modeled after the Uniform Flag Law of 1917, that prohibit the desecration of the flag or its use for advertising and publicity purposes.
At the height of the Vietnam War, many states revised their statutes to reflect the language in a 1968 federal law. To address a sudden rash of flag-desecration incidents, Congress imposed criminal penalties nationwide on anyone who "knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it."
But the Supreme Court decision in Texas v. Johnson forced many state officials to consider such laws once again. Several new laws that surfaced echoed the federal Flag Protection Act of 1989, which punished anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag."
The high court invalidated the 1989 federal law in U.S. v. Eichman the next year.
Frustrated, many state officials offered measures similar to the one proposed in Missouri last year, Goldstein said. But he said these efforts to legalize assaults against flag-burners disappeared soon after the federal law did.
But in the wake of the Supreme Court decisions, nearly every state left such laws on the books. Only Tennessee revoked its flag-desecration law, although statutes in Colorado and Wisconsin include notations acknowledging constitutional problems. Neither Alaska nor Wyoming has ever approved such a law.
Some prosecutors still attempt to use such laws against those arrested for burning or destroying the U.S. flag.
Goldstein said that in researching his books, including his latest, Flag Burning and Free Speech: The Case of Texas v. Johnson, he found several dozen arrests on such charges. He said he found no fewer than 12 flag-desecration cases that actually reached the trial phase.
"But none of them have been successful," Goldstein said. "They all have been thrown out in lower courts or turned away on appeal. And the U.S. Supreme Court has declined to reopen it."
Marty Justis, executive director of the Citizens Flag Alliance, says he isn't surprised at the lack of success of prosecuting flag-desecration cases after the Supreme Court's two decisions.
"I would suspect the same would occur wherever the defendant might be brought to trial," Justis said. "Most of them never get that far because the defendants have lawyers that explain to local law enforcement that the U.S. Supreme Court has declared this to be protected speech."
And that, Justis said, is why Congress must approve a flag amendment to allow such laws to exist.
"We're hoping that the constitutional amendment to protect the flag would keep those laws in place," he said.
Phillip Taylor, a reporter for the Daily Press in Newport News, Va., is a free-lance correspondent for freedomforum.org.
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