A Stitch in Haste

"The Congress shall have power to prohibit the physical desecration of the flag of the United States."
--Proposed Flag Protection Amendment

"[A] government cannot mandate by fiat a feeling of unity in its citizens."
--West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)

I'm not very well briefed on the politics of the Flag Protection Amendment. Rumor has it that the Senate is one or two votes shy of the 67 needed to approve. And who knows what chance it has among the states (remember, only 13 states need fail to ratify it for it to be dead, dead, dead).

Having said that, were the amendment to be ratified, here are some initial thoughts:

1. The amendment says that Congress shall be authorized. Which invites the question: what about the states? If the intent is for only federal anti-desecration laws, then so much for conservatives championing "federalism." If not, then it's a horribly crafted proposal — if flag-desecration is so terrible, then why not let the states criminalize it too? (SIDEBAR: Forty-eight states had flag protection laws before the Supreme Court declared flag desecration protected under the First Amendment in Texas v. Johnson, 491 U.S. 397 (1989).)

2. The amendment is only what is called an "enabling amendment" — it doesn't actually outlaw flag desecration but merely authorizes Congress to proceed. (Compare: The Thirteenth Amendment expressly abolished slavery; the Eighteenth Amendment expressly outlawed alcohol.) One wonders whether, amendment in hand, Congress would actually follow through and pass any flag protection laws. Or might a ratified flag desecration amendment quickly go the way of the Third Amendment?

3. The conservatives who are championing this amendment are the same conservatives who decry "judicial activism." Yet this amendment would expressly require judges to be "activist" in applying it. No matter how much implementing legislation Congress were to enact following the ratification of this amendment ("What is a 'flag'?" "What is 'desecration'?" "What is 'physical'?" "Is anyone exempt (e.g., artists)?" "Are any contexts exempt (e.g., movie portrayals)?") These would all require a vast new branch of judicial interpretation. Oh, sorry, I believe the conservative term is "judicial activism." Go figure.

4. Stated differently, amendment notwithstanding, any court ever hearing any flag desecration case could simply argue that the amendment, and any implementation statutes passed under it, are unenforceably vague anyway. The Supreme Court has neglected the Ninth Amendment to the point where it is a nullity (or "inkblot"), and expressly "vetoed" Fourteenth Amendment Privileges & Immunities just five years after that amendment was ratified. The Court could simply do the same for a flag desecration amendment: "Yes, yes, flag desecration, very nice, good for you — but we as judges simply don't know how to adjudicate these issues for you, so, um, we're not even going to try. Have a nice day."

Hopefully the amendment will die quietly in the Senate or among the states and these questions need never be answered.

In any case, a free society is supposed to protect people, not objects. How sad that such a remedial concept is lost among our "enlightened," activist politicians.

Other thoughts at:
Gene Healy
Coyote Blog
Diminishing Returns
Purple America
As I Please
Dispatches from the Culture Wars
Where the Dolphins Play

Suggested Reading:

I don't get it:

A teenager was jailed for nine days after being accused of burning an American flag on the Fourth of July, and he faces trial next month.

While the case could test a state statute against flag burning -- an act the U.S. Supreme Court says is protected under the First Amendment -- prosecutors said Andrew Elisha Staley has yet to argue that he was exercising free speech rights.
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The Tennessee flag-burning statute makes the crime a misdemeanor, punishable by less than a year in jail and up to $2,500 fine.

Now let's be clear here: the kid allegedly stole a neighbor's flag (a criminal offense) and was publicly intoxicated (also an offense). Fair enough. Try him for those offenses and punish him accordingly if convicted.

But there is simply no question about flag burning. The issue has been unambiguously resolved by the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). Furthermore, the First Amendment has been fully incorporated by the Fourteenth Amendment -- see Gitlow v. New York, 268 U.S. 652 (1925) -- so states also cannot criminalize flag burning.

Is the prosecutor's argument that Johnson only applies to flag burning intended as "expressive conduct" and that the teen's conduct was not intended as speech but merely as drunken mayhem? If so, then how on earth are a judge or jury supposed to draw that line, for this defendant or for anyone else? Do we forfeit our First Amendment rights whenever we get drunk? It simply can't be done. Even if Johnson were somehow distinguishable, the Tennessee statute would still fail for vagueness.

In other words, there is no question, absolutely none, that the Tennessee flag-burning statute is unconstitutional.

So my question becomes this: Why is it not prosecutorial misconduct to charge a person with violating a criminal statute that any minimally competent prosecutor, indeed any minimally competent attorney, knows or should know is unconstitutional? Also, does not such a prosecution give rise to a cause of action under 42 USC 1983 ("violation of civil rights")?

This kid needs better lawyers.

I made the case back in July that state flag-desecration bans are so patently unconstitutional as to possibly give rise to civil rights lawsuits should they actually be prosecuted.

It seems like Utah sorta kinda got the message:

A 10th U.S. Circuit Court of Appeals panel will hear arguments Wednesday on the constitutionality of a Utah law that bans desecration of U.S. and state flags.
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Attorney Brian Barnard said his client burned an image of a "smiley face" on a U.S. flag as an expression of frustration with the judicial system. He then displayed his work in front of his garage in October 2002.
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Barnard claims Utah's law is unconstitutional under a 1989 U.S. Supreme Court ruling, that declared a similar statute in Texas unconstitutional.
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County prosecutors dropped Winsness' case but reserved the right to refile charges at any time. Barnard said that puts his client in constant fear of being prosecuted in the future.
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But according to the state's response to the lawsuit, the two men lack legal standing because the charge against Winsness was dropped and Larsen was never prosecuted.

Well isn't that cute — drop the charges, but warn that he may be prosecuted in the future, and then on top of that argue that, since he isn't being prosecuted, he has no standing the challenge the statute.

Very slick.

And by engaging in this on-again, off-again maneuvering, the state law of course stays on the books, to be used if not to prosecute, then at least to intimidate future flag burners.

Very slick indeed.

This is not my area of expertise, but I think the prosecutor is wrong regarding standing. See Doe v. Bolton, 410 U.S. 179 (1973) (Those seeking to challenge the constitutionality of a criminal statute "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.")

And, more importantly, the Utah statute is in fact unconstitutional on its face, as are all state laws banning flag desecration — see my previous post.

If this isn't prosecutorial misconduct, then I'm not sure what is.

Hat tip to How Appealing.

UPDATE: Apparently federal circuit court judges know the law better than local hack prosecutors --

Justices [sic] with the U.S. 10th Circuit Court of Appeals expressed concern that a county prosecutor in Utah would choose to prosecute someone under a flag desecration law that has been deemed unconstitutional since 1989 and that Salt Lake County law enforcement appears ill-informed about such rulings.
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[Circuit Court Judge Monroe] McKay said he was troubled that a prosecutor appeared to have no knowledge of "one of the most notorious cases of our time," referring to Texas vs. Johnson, the 1989 Supreme Court ruling that struck down Texas' flag desecration law. ... [Circuit Court Judge Michael] McConnell also expressed concern that the Salt Lake County deputy did not appear to be educated on the fact that the law was not usable.

I still say the litigants should pursue claims for civil rights violations. In any case, hopefully local prosecutors and senior police officials will finally get it through their heads: criminalizing flag desecration is unconstitutional -- deal with it.

Hat tip yet again to How Appealing.

Senator Hillary Clinton will be the sole co-sponsor of a gratuitous, redundant and constitutionally suspect bill that (only sorta kinda) bans desecrating the American flag:

The bill doesn't explicitly ban anyone from setting the flag afire.

But it makes it illegal for a protester to "intimidate any person or group of persons by burning" the flag — which leaves police with plenty of room for interpretation.

It also outlaws anyone from lighting somebody else's flag on fire and from desecrating the flag on federal property.

Congressional lawyers, who have been poring over Supreme Court rulings, believe the bill will withstand judicial review.

But for Clinton, analysts say the real value is that she can tout her co-sponsorship of the bill on the campaign trail.

I might — might — understand conservative hack politicians beating this dead horse as a pandering gesture to the Great Red State Unwashed. (Gay marriage bans are so 2004...)

After all, destroying someone else's property is of course already illegal — but obviously we need a new federal law making that clear in the singular context of flag desecration. Ditto for "intimidating" people.

Meanwhile, never mind that, regardless of any Congressional chest-thumping to the contrary, a law that restricts expressive conduct on public property is going to be constitutionally suspect. And we already know how the Supreme Court feels about the subject of flag desecration — see Texas v. Johnson, 491 U.S. 397 (1989).

But as for Clinton, this is on-your-knees groveling of the worst kind. She is doing to the civil libertarians precisely what her pervert husband did to gays — sell them out for the sake of a few votes — not once (federal DOMA), not twice (Don't Ask, Don't Tell), but three times (advising John Kerry to flip-flop on gay marriage). Expect his hack politician wife to do the same for any other "expendable" group. To the Clintons, principles are never more important than votes.

There's a word for someone who sells her principles, ethics and dignity for myopic material gain.

Prostitute.

It must be an election year:

Sen. Orrin Hatch's proposed amendment to the Constitution allowing Congress to ban desecration of the U.S. flag will be brought up in the Senate in June, setting up a dicey campaign-year debate over free speech rights.

Majority Leader Bill Frist announced Tuesday he will bring the Utah Republican's proposed amendment to the floor at the end of June, just months before voters hit the polls.
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Frist, a Tennessee Republican, said the proposal needs airing because the U.S. flag "honors the sacrifice of countless brave men and women who died defending our flag and the ideals it represents."

And what would those ideals be exactly? Because they obviously can't include freedom of expression if people -- especially our supposedly wizened and sober Senate leaders -- believe it is proper and permissible, even through the amendment process, to suppress symbolic conduct.

If there can be such a thing as an "unconstitutional constitutional amendment," then a flag-burning amendment would be it. Even more so than the Federal Marriage Amendment.

With two very sad exceptions, every constitutional amendment ever ratified has been an attempt, either directly or indirectly, to increase the legitimacy of the American government. How sad, how very sad, that the two most oft-mentioned potential amendments today could be such humiliating, de-legitimizing, un-American leaps backwards.

To steal a line from Ayn Rand: if these are the kind of people who are for "the American way," then there is no such way any longer.

The proposed amendment is bureaucratically known as S.J.RES.12; House version H.J.RES.10.

(Via How Appealing.)

Here is the exact text of the proposed Flag Desecration Amendment, S.J. Res 12, H.J. Res 10:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Let's put aside for the moment any questions of the First Amendment, which the Flag Desecration amendment would partially repeal. If this were a statute, it would be unconstitutional, not only because of the First Amendment (see Texas v. Johnson, 491 U.S. 397 (1989), but also because it would be unjusticiably vague.

--What is "physical desecration"? Is hanging a flag upside-down "desecration"? Is soaking it in mock blood? Dragging it through the mud? Cutting a hole in it?

--What is a "flag"? Is a computer animation of flag-burning a flag? Is a stars-and-stripes hat or pair of socks a "flag"? Is a postcard with a flag on it a "flag"? A picture of a flag?

--What is the "flag of the United States"? Is a Colonial-era flag protected? A pre-Alaska flag with 48 stars? A confederate flag?

--What about the rest of the Constitution besides the First Amendment? Current constitutional jurisprudence holds that later amendments do not necessarily repeal earlier parts of the Constitution (see, e.g., the interstate wine cases). If two consenting adults have cognizable rights in the privacy of their own bedrooms under the Fourth and Fourteenth Amendments (see Lawrence v. Texas, 539 U.S. 558 (2003)), then do they not also have the right to desecrate a flag in the privacy of their own bedroom?

In short, any legislation passed by Congress in the wake of the ratification of this amendment would crash head-on into the Vagueness Doctrine and other constitutional problems. And, in the end, it would not protect the flag (which, some of us still insist, does not need protection from anyone other than the government itself).

The Supreme Court has a nasty habit of declaring portions of the Constitution nullities — see this post. What would stop the Supreme Court from declaring — indeed what choice would they have but to declare — that this amendment and any legislation it were to spawn would be hopelessly unjusticiable and therefore merely a symbolic gesture with no real legal impact?

More thoughts from Below the Beltway, PoliBlog, Donklephant To The People.

The proponents of a partial repeal of the First Amendment via a "Flag Protection Amendment" insist that the flag "stands for something." Something intrinsically and perhaps uniquely American.

Well, apparently that "something" doesn't include property rights or freedom of contract:

Also up for consideration in the House this week is the Freedom to Display the Flag Act, which would bar condominiums or other homeowner associations from restricting the size or placement of residents' flags. It's expected to pass today.

Of course, condominiums and homeowner associations are strictly voluntary multi-party contracts to guarantee property rights — the right to have your community, in which you have an ownership stake, operated the way you see fit. You know what the rules are going in, and if there is a rule you feel strongly about, such as "no pets" or "no flags in windows," then too bad so sad — live somewhere else.

These associations are also "mini-democracies" (or "mini-republics," if you prefer). The management boards are popularly elected and operate, with limited and pre-defined authority, under a set of by-laws — again as part of the voluntary (and dare we call it "social") contract that each resident enters into as a condition precedent of joining the community.

All this is, somehow, "un-American" and must be quashed by a far-off Congress, led by some hack politician* in Maryland.

Welcome to the New American Way™.

The bill is H.R. 42.

(Via To The People.)

*Oh, sorry, Representative Roscoe Bartlett, the bill's sponsor, insists that he is "a citizen-legislator, not a politician." Fine, he's not a hack politician, but rather a hack citizen-legislator. My bad.

More thoughts at Below the Beltway.

UPDATE: The law, H.R. 42, has been signed into law by President Bush.

But fear not, the "dedicated public servants" of Pahrump don't plan to enforce the comprehensive anti-Hispanic ordinance:

Town business is already conducted in English, the ordinance regulating the display of flags won't be enforced, and the town has no real "benefits" to take away because public aid is administered by the state or the county, officials said.

The flag measure requires an American flag to be displayed at least as prominently as a foreign flag.

Does passing a patently unconstitutional restriction of free speech that you know, in advance, you're not going to enforce make it any less unconstitutional? Or does it just make you a jackass?

More:

Lee Rowland, an ACLU staff lawyer from Las Vegas, told the board the ordinance would invite an expensive lawsuit challenging its constitutionally.

"If you pass an ordinance that is blatantly in violation of the First Amendment, this town will be on the hook," Rowland said.

Damn right. Judges have recourse when plaintiffs file frivolous lawsuits. Perhaps they need recourse when politicians enact frivolous laws. Should legislative immunity really prevent these fools from spending a few nights in jail on "contempt of Constitution" charges? Stated differently, are "activist judges" really more of a threat to the American way of life than activist legislators?

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For those who need specifics, simply see Texas v. Johnson, 491 U.S. 397 (1989) ("The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.") If burning the flag is constitutionally protected expressive conduct, then surely flying another flag above it must also be protected speech. This is not a difficult concept.

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(Via CrimProf Blog.)

Rank protectionism draped -- in a flag -- as faux patriotism:

A move is on in state legislatures to ensure that the flags folks will be flying and buying this Independence Day were made on this fruited plain.

Minnesota has passed the strongest measure, a new law that goes into effect at year's end requiring every Old Glory sold in state stores to be domestically produced. Violations are a misdemeanor, punishable by up to a $1,000 fine and 90 days in jail.

In Arizona, schools and public colleges were required starting July 1 to outfit every classroom from junior high up with a made-in-the-USA flag. Tennessee requires all U.S. flags bought via state contract to be made here, and similar bills are moving forward in both New Jersey and Pennsylvania.

Restrictions on economic liberty -- "Made in The U.S.A"!

It's quite simple really: If a governmental body wants -- foolishly -- to limit its own purchases (with taxpayer money) to domestically produced goods, then so be it. Such idiotic myopia is beyond the reach of the courts (even though such purchases clearly would not satisfy rational basis review -- if a lawsuit could somehow materialize).

But the idea that a private person, with her private wealth, cannot buy a flag, made by a private manufacturer and sold by a private retailer, to display on her private property -- all because some moral defective moron in a statehouse feels the activist urge to decide for everyone else how best to be "patriotic" -- merely shows, yet again, that "The American Way" is long dead, and that there is little to commemorate today.

I can casually ignore the abominable assertion that it is illegal in the United States to fly another country's flag higher than the United States flag.

I cannot casually ignore the abominable assertion that people who, motivated by bigotry cloaked as patriotism, can destroy other people's private property and be called heroes:

The gentlemen who took down the mexican flag should be honored for his patriotism and protecting our flag which was being used illegally.
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I think this man is a hero!! I wish more people would step up and act instead sitting down and doing nothing.
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I support the veteran who removed the American flag with his knife.
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I was so happy that someone finally decided to stand up for Americans. The way the hispanic community disgraces our flag is horrible.

That's a sample of the reaction to this story:

On Monday afternoon we received a call from a KRNV News 4 viewer who said a business near downtown Reno was flying a Mexican flag above an American flag... which is in fact illegal.
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This, after photos and comments about the flag were posted on Craigslist this morning. When we were able to have a photographer go and check everything out we found the story to be true.

It also didn't take long before the situation provoked a strong reaction.

There is accompanying video at the link — a disturbing demonstration of brazenly criminal conduct by an unpatriotic, anti-American sleazeball named Jim Brossard.

Incidentally, it is of course not illegal to fly another country's flag above the American flag. The law cited by the ignorant journalists, 4 USC 7, is merely a regulation for government displays of the flag, not a criminal statute concerning private conduct or private property. State laws on the subject, meanwhile, are flagrantly unconstitutional — see Texas v. Johnson, 491 U.S. 397 (1989). So the "of, by and for morons" description also apparently applies to local hack reporters (who, recall, some very misguided people insist are somehow entitled to "privileged" status).

Overall, embarrassing and depressing events all around. God bless (Redneck Red-State) America!

More thoughts from the Nevada ACLU.

Technorati Tag: Jim Brossard