Oh, No!

Right before I went to bed last night, I saw a reference to this article in USA Today:

The Senate is one vote away from passing a constitutional amendment that would ban desecration of the U.S. flag, the closest that amendment supporters have been to passage.

And as I drifted off to sleep, I was thinking that although this pernicious amendment seems to have some momentum behind it, I could at least take comfort in knowing that none of my elected representatives would actually support such an abomination.

And then this morning, I find this: (tip of the hat to the always-vigilant Glenn Greenwald and his anonymous co-conspirator)

Flag needs protection
By Dianne Feinstein
On the morning of February 24, 1945 ‚— when I was a 12-year-old girl — I picked up a copy of the San Francisco Chronicle. On its cover, there was a full-page picture of the now iconic Joe Rosenthal photograph of American marines raising the United States flag at Iwo Jima.

She goes on to explain how this picture "cemented" her view of the flag. OK, sure. Powerful imagery there. But she then resorts to two deeply flawed rationalizations of her support for a constitutional amendment.

First, she cites the late Justice Byron White's 1974 concurring opinion in Smith v. Goguen that like the Lincoln Memorial, "[t]he flag is itself a monument, subject to similar protection." That bit of sophistry is unbecoming a Supreme Court Justice (or even a Senator). Clearly unlike the Lincoln Memorial, each individual flag is not a monument. So while White and Feinstein are correct that the physical monument to Abraham Lincoln is deserving of protection against defacement and desecration, I doubt that either would consider it appropriate to amend the constitution to protect every image of the Lincoln Memorial.

There is an entire souvenir industry that involves pressing pennies into images of some tourist attraction, and every one of those squashed pennies thereby loses its image of the Lincoln Memorial. Leaving aside that the intent of squashing pennies is generally not to protest the U.S. government, it is absurd to think that every likeness of an actual monument deserves the same protection as the actual monument.

That said, "the flag" is not a single, fixed item. It is not a monument. White himself called it

"...an important symbol of nationhood and unity, created by the Nation and endowed with certain attributes. Conceived in this light, I have no doubt about the validity of laws designating and describing the flag and regulating its use, display, and disposition."

One could quibble with the use of the term "symbol" (it's really more of an emblem), but it is clear that the flag is not a monument.

I'll return in a moment to the matter of "disposition."

Senator Feinstein's second defense comes from the notion that protecting the flag from desecration can be achieved without infringing the First Amendment protection of free speech and expression:

There is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment would leave both the flag and free speech safe.

Apparently the Senator feels it is acceptable for the Constitution to delineate which methods of expression are acceptable, as long as some other method is available. But that argument is specious. Following that logic, one could proscribe songs, because the same thoughts or ideas could be expressed in words alone, or restrict poetry because prose would be available. Art could be restricted as to color, and so on.

It is precisely that line that the first amendment draws: it is not the role of the government to decide what we may think or how we may express those ideas. Indeed, the notion that somehow the government can decide that we don't need that particular means of expression calls to mind the legendary Marie Antoinette who seemingly could not understand peasants rioting over a lack of bread, when cake was surely available. When the law starts to infringe on the content or manner of expression, the freedom of expression is under attack.

Now then, to the question of this national emblem and its disposition. Justice White suggested that because the flag was created by "the Nation," he had no problem with laws describing the flag and its use and disposition. But that is precisely where the problem lies. If "the Nation" can declare objects sacred ("desecration" means violation of sacredness; "flag desecration" therefore implies that the flag is sacred!), that Nation can also compel the veneration of those objects, and that again is exactly what the first amendment is meant to prohibit.

If we love, cherish, and revere the flag as a national emblem or symbol, it is precisely because of the efforts and sacrifices of those who raised the flag at Iwo Jima or planted it on the moon. You cannot legislate sacredness, and it is fool's errand to try. If people lack respect for the flag or for the nation it represents, a better solution is for the leaders of the nation to act respectably, instead of pandering and trying to create respect by fiat.

As I did a little more research today, I found that Senator Feinstein has supported efforts to "protect the flag" in the past, so I doubt that I will succeed in persuading her otherwise this time. But it is my duty to try. I have too much respect for this nation and its institutions to do otherwise.