Like umpteen elected officials before him, President Trump is proposing that anyone who desecrates the America flag be “vigorously prosecuted” to the tune of “one year in jail—no early exits, no nothing.”
Good luck with that. Defiling the Stars and Stripes is a right of free speech protected under the First Amendment—further held by the Supreme Court in 1989, as I reported from the nation’s capital.
That’s not to say the court’s narrow 5-4 ruling deterred subsequent politicians—Montana Sen. Steve Daines prominently among them—from patriotically pursuing wider protections for Old Glory.
What Congress has been unable to answer—despite numerous attempts—is what exactly constitutes the physical desecration of the flag?
The U.S. Flag Code provides guidelines for the proper display and handling of our nation’s flag, but they’re not enforceable. My father would take down our family’s flag every twilight like clockwork, reminding his three sons that unless illuminated it can be displayed only from sunrise to sunset.
Nor should the flag be flown in inclement weather, become soiled, touch the ground, used for advertising or clothing (both quite common today), and never ever should its union blue field of stars hang upside down except during instances of dire distress or extreme danger to life or property.
Just last summer I took Supreme Court Justice Samuel Alito to task in this column after it was revealed that an upside-down U.S. flag was once hoisted above his home (dire distress, or so I guessed, as things weren’t going well for Trump at the time). Certainly aware of flag etiquette, the conservative jurist promptly blamed his wife for sullying the flag.
I was also covering Capitol Hill in 1995 when the U.S. Senate considered a constitutional amendment to ban flag desecration, once again to no avail. Congressional debate actually bordered on outlandish.
Several lawmakers drew attention to countless clothiers and merchants who plaster Old Glory on everything from T-shirts and headbands to beach towels and napkins. Should they be prosecuted?
Republican Sen. Strom Thurmond wondered whether the otherwise patriotic motorist who had no access to a paper towel or rag could be sent to jail because he used an American flag to wipe his vehicle’s dipstick?
I was taking notes in the Senate Press Gallery when then-Senator Joe Biden, whose small state of Delaware boasts several popular beaches, concocted a rather risqué scenario that silenced the entire Senate body.
“How about the woman who buys the revealing thong bikini that is made in a flag?” he wondered. “Is that profaning the flag? Is she to be arrested?”
Senators were stumped—or else shell-shocked.
Biden wasn’t yet finished with his R-rated word play, suggesting any eventual legalese make it “unlawful to do the flag harm: no ifs, ands, or buts.”
But that was then and this is now, and this current president is on a roll. Trump’s latest executive order—that the attorney general aggressively prosecute any and all flag burners—will be a test of the Supreme Court’s 1989 ruling, or so he’s hoping.
And with the bench now solidly bent to the right the president could very well prevail.
It wasn’t terribly long ago that conservatives in this country fervently supported the First Amendment, what with its protections of free speech, assembly, religion, and press. I don’t know about you, but I’ve witnessed enough unraveling of this nation’s laws, regulations and rights over the last six months.
Upon his retirement, former chairman of the Joint Chiefs of Staff Army Gen. Colin L. Powell was asked by Congress for his views on yet another flag amendment proposal.
“We are rightfully outraged when anyone attacks or desecrates our flag,” he answered. “Few Americans do such things and when they do they are subject to the rightful condemnation of their fellow citizens. They may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration …
“We should condemn them and pity them instead,” Powell said. “I would not amend that great shield of democracy [the Constitution] to hammer a few miscreants. The flag will be flying proudly long after they have slunk away.”
John McCaslin is a longtime journalist and author who lives in Bigfork.