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Standing up for Constitution is pure patriotism

Commentary

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

06.15.99

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The Tennessee Tea Party was out in full force last month.

Upset about state government spending, several groups stood at the state Capitol in Nashville, exercising the full range of First Amendment freedoms: assembly, petitioning government and, above all, free speech.

Part of that free speech was captured in a front-page photo in The Tennessean, showing American flags flown upside down in an act of political protest.

No one was arrested for this treatment of the flag. Demonstrators, including representatives of the Tennessee Conservative Union, the Tennessee Christian Coalition, Tennesseans for Sensible Roads and Citizens for Good Growth Management were protected from prosecution because of a 1989 U.S. Supreme Court decision saying that altering, defacing or burning the flag in an act of political protest is protected by the First Amendment.

Contrast that with the treatment of those who flew the flag upside down when flag-desecration laws were still in place, as detailed in Robert Justin Goldstein's book 'Saving Old Glory':

  • A Long Island man who objected to the 'distressed' state of the nation during the Vietnam War by flying the flag upside down was arrested and convicted in 1969.
  • A year later, Elizabeth Hubner of Mineola, N.Y., was arrested for a similar act. She was handcuffed, fingerprinted and had to post $500 bail. After that humiliation, she was acquitted by a judge who found that her actions did not defile the flag.
  • After an Indianapolis student was arrested for flying a flag upside down, the judge said, 'It looks to me like we have one of those young men who want to destroy our society,' according to Goldstein.

When government had the power to force respect for the flag, it used it. People were prosecuted for painting flags on automobiles. A teen wearing a red, white and blue belt was arrested in Illinois. A Massachusetts man who wore a flag patch on the seat of his jeans was sentenced to a year in prison. In 1970, a Dallas man was sentenced to four years in prison for burning bunting with 21 stars and eight stripes.

In 1999, the Citizens Flag Alliance is determined to restore prosecution for showing disrespect for the flag. Knowing that it can't overturn the Supreme Court decision, the alliance is trying to amend the Constitution and subtract rights from the First Amendment for the first time in our nation's history. The alliance has had amazing success so far. Far from being a 'grass-roots' organization, it has spent $15 million, primarily from the American Legion, to make flag desecration a crime. The House of Representatives has twice overwhelmingly supported the bill — no one wants to take the chance of being labeled 'anti-flag.' Supporters need 67 votes in the Senate. They had 63 votes in 1994 and a commitment of 64 or 65 last year (no vote was taken).

Ironically, the one thing that may stand in the way of a flag-burning amendment is a flag-desecration statute. U.S. Sen. Mitch McConnell (R-Ky.) has introduced a bill that offers an alternative. It would prohibit flag desecration intended to 'incite or produce imminent violence.' Political protest would be protected.

The proposed law might have a better chance of being upheld by the courts because it focuses on criminal conduct rather than speech. In any case, it gives senators with concerns about tampering with the First Amendment an option. It provides some cover when political rivals come at them with television spots claiming that they are not patriotic.

And, of course, that is the greatest irony of all — the people who would stand up for the Constitution are accused of loving their country less.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

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