A Few Symbol-Minded Questions

By Frank Trippett

Lawmakers looking for a way to protect the flag have a lot of searching to do if they hope to cover all possibilities. An amendment or statute simply outlawing desecration of the U.S. flag is not going to do the job. Potential loopholes and tricky questions abound. For instance:

If there is only one official U.S. flag, would it be permissible to burn an unofficial one -- say, an obsolete model with 48 stars? Since a flag is, by usual definition, made of fabric, should a wooden representation of it be protected? What about little lapel pins or cuff links with flags on them? What if somebody publicly stomped a piece of such jewelry?

By custom, the U.S. flag is often called "the red, white and blue." Should the nation prohibit the abuse of any red-white-and-blue decoration? Should it be a crime to burn red-white-and-blue bunting? Or foreign flags of red, white and blue? Incidentally, should "the red, white and blue" be considered a flag when represented in black and white?

What if somebody burned one of those decorative wind socks that are fashioned with a blue field of white stars and red and white stripes to suggest the U.S. flag? A crime?

What if vulgar protesters wiped the ground with a flag designed exactly like the U.S. flag -- but colored orange, brown and green? Should that be an offense? Should making such a flag equal desecration?

Should a law protecting the flag also protect homemade facsimiles of the flag? Is a crayon drawing of the flag a flag?

Besides burning, what would constitute the "physical" desecration some of our political leaders emphasize they hope to outlaw? Does that include obscenely wagging a finger at a flag? Sticking out one's tongue at the flag? Thumbing a nose at the flag? What if some miscreant mooned the flag? Or stuck pins in the flag -- in public?

At present, burning the President in effigy is lawful. Should it be unlawful to burn an effigy of the flag? Is the flag more important than the President?

Indeed, is the flag more important than any other American symbol? Or should the statute or amendment be expanded to protect all significant national symbols? What if protesters burned a model of the White House? Should that be a crime?

Suppose the national anthem got desecrated? What if somebody deliberately sang or played it off-key? What if a dissident publicly stomped a tinkling music box while it was playing The Star-Spangled Banner? Should that be allowed?

If flag burning is outlawed, should it still be all right to burn the U.S. Constitution? Or the Declaration of Independence? Or (gasp!) the Congressional Record?

Is the flag even more important than Congress? Imagine that protesters burned the entire U.S. Congress in effigy. Would that be O.K.? What if each tiny effigy were wearing a teensy-weensy lapel flag?

Should states be permitted to electrocute a condemned prisoner with a flag tattooed on his chest? Should burning the flag be a more serious crime than burning a church? More serious than burning a cross?

Should the nation permit postage stamps bearing pictures of the flag to be defaced by inky cancellations?

Commercial exploitation of the flag is commonplace in print, on television and around business premises. Since such use (almost by definition) debases the flag, should it be outlawed? What should be done about garments featuring % a flaglike motif? When a flag is cut and sewed into a shirt, is it still a flag?

Does political exploitation debase the flag? Should it be prohibited?

Philosophically speaking, is it even possible to desecrate the U.S. flag? One can desecrate something that is sacred, holy or religious (which is just what desecrate primarily means, according to the Oxford English Dictionary). Is the U.S. flag sacred, holy or religious? Or is it a symbol of a secular state?

If the flag is now a secular symbol, would an amendment against desecrating it transform it, by implication, into a sacred symbol? Would such an act approximate the founding of a state religion?

If the flag is a sacred, holy or religious symbol, is the worship of it idolatry? Would a flag-worshiping congregation be exempt from taxes like other churches? Should flag burning be considered desecration even if the burner does not believe it to be sacred, holy or religious? Does sacredness exist in a physical object or in the mind of the object's worshiper? There seems no end to such questions.

Answers are not as plentiful. It is not enough to say, as a New York State senator once said, "We want people to respect the flag, and if they will not respect it voluntarily, then we will make them respect it involuntarily." Toward that end, lawmakers might get useful guidance from the Alien and Sedition Acts. Passed in 1798, they were enforced in a way that made a crime of any idea, opinion, remark or act a judge disapproved of. One New Jersey man was arrested and fined $100 for saying he did not care if somebody fired a cannon up the President's arse.

Funny, the laws that made it sedition to speak ill of the President and the Government contained no provision against flag desecration. Still, Federalist judges sitting at the time would have been happy to imprison any Jeffersonian Republican who abused the flag. Among the Americans the Federalists did put behind bars was the author of a placard that urged NO STAMP ACT, NO SEDITION AND NO ALIEN ACTS. And newspapers sternly denounced as "seditious" a group that burned not the flag, but the Alien and Sedition Acts.

That raises yet another question: Should it be a crime to burn a statute or constitutional amendment that makes flag burning a crime?