Law & Life
Where is Plato when we need him?
By R.P. Joe Smith
So, Patrioticus, you propose we amend the Constitution to allow us to punish
people who mistreat our flag. Your opponents cry this would contradict the First
Amendment, which they call our most important bulwark against government oppression.
How should we respond to this argument?
They are simply wrong. We do not seek, nor do we wish, to abridge speech, or
limit expression of opinion, as envisioned by our Founding Fathers. We only
wish to honor the emblem of our nation, and our freedom, and to prevent conduct
disrespectful of it.
What sorts of conduct do you wish to prevent:
Things like spitting or stepping on the flag, or burning it, or throwing it
on the ground.
You believe we should have laws forbidding such acts?
I most certainly do.
Do you believe such laws should be uniformly and universally enforced?
What do you mean?
I mean that if anyone - in America of course - spits or walks on a flag, or
throws it on the ground, should that person be punished for breaking the law
you seek? Regardless of their religion, race, or ethnic or economic background?
Of course. I strongly believe all laws should apply to all citizens. Discrimination
of the kind you suggest has no place in America.
What do you mean by the word 'flag' in your proposal?
I mean the Flag! There is nothing difficult to understand about that. The American
Flag: a rectangular banner with thirteen horizontal stripes, alternating red
and white, which represent the first 13 states, with one corner bearing a superimposed
field of blue, dotted with white stars representing the states when the flag
What must this object be made of, to qualify for the protection of the law?
Oh, Socrates, you are up to your old games. It is usually made of cloth, but
it really doesn't make any difference what it is made of.
What if it's made of metal?
If it meets my description, it would be protected.
Most certainly, paper.
Would this not create huge burdens on those charged with enforcing the law,
as well as significant restrictions on quite ordinary behavior?
In the first place, it is clearly wrong to suggest throwing the flag on the
ground, or spitting on it, or burning it, is normal behavior. As for enforcing
it, I see no reason to believe it would be any harder than enforcing any other
illegal conduct, and indeed, because the conduct would be so obvious, much easier
Ahh... then you mean the only conduct you intend to forbid is that seen by others?
That is, if someone used a flag for a nosewipe or spit-catcher, but did so only
in private, that would be all right? I have a specific example in mind: some
years ago Oregon had a law banning behavior deemed disrespectful of the flag.
A young man, who described himself as a 'hippie,' used a flag for
a seat cover in his car. He was prosecuted, eventually resulting in the law
being thrown out by the court for violating the First Amendment. If I understand
your proposed amendment, it would make such a law constitutional. Would the
seat cover use be acceptable as long as he did not let anyone else see it?
Of course not. Whether someone else saw it or not, he was still doing something
to the flag which should not be done.
I observed a large party for a child last July. The parents had decorated the
cupcakes with small American flags. Some of the children threw their flags on
the floor. A few of them got into food fights, with flags attached. All of the
flags wound up being torn, or trashed. Would that have violated the law you
seek, and if so, who should be prosecuted - the parents, the caterer, the children?
Another related question, as you consider that one. It has become very common
for civil servants - police and fire protection people especially - to wear
flags on the sleeve of their uniforms. These are regularly consigned to the
laundry, and I'm sure are often thrown on the laundry room floor and with some
frequency, stepped on. It would not surprise me if domestic pets made use of
the softness they offer for their own purposes. Should these public servants
be prosecuted under the laws you propose? Or should we ban the use of flags
for party decorations, or as emblems on clothing, to prevent violations?
If you will forgive one more question, in similar vein: the flag is frequently
depicted in magazines and other printed material; this material is disposed
of in very summary fashion. I'm told that in some of the more rustic parts of
the country it still may be used for personal hygiene. Would so using a newspaper
bearing a flag on its front page violate the laws you wish to validate?
Aha! Socrates, your silly questions reveal the shallowness of your understanding!
In every example you offer, you are missing the key ingredient! In your first
example, the hippie, he intended to be disrespectful of the flag. One of the
marks of 'hippies' was disrespect for America and its values, and
you'd surely admit he would at least show it to passengers of like mind. And
apparently the police who arrested him could see it.
your other examples - the party, the police and the paper user - they clearly
did not intend disrespect. The party parents may well have been trying
to remind the children of their great heritage. The police may wear the flag
to show their allegiance to this great country. And in fact, neither the parents
nor the police nor the paper user may be intending to express anything at
I see. If I understand you rightly, burning or wiping or walking upon to suggest
disagreement or disrespect would come under the laws you seek to allow, but
otherwise perhaps not?
Now you begin to understand.
Socrates: Patrioticus, I am in your debt for your patience with an old man. There does however remain one question which our discourse has deepened, rather than answered: how can you contend you would not limit the right to dissent, of free speech, when the key ingredient making the conduct a crime is that it is done to express an opinion?
ABOUT THE AUTHOR
R.P. Joe Smith is maintains what he calls a 'limited practice' in Portland, where he has resided for 28 years. He was intimately familiar with the hippie and flag case; he prosecuted it shortly after being elected district attorney of Umatilla County. Later, he used the strict Oregon statute to charge 'front people for Boeing Aircraft' for improperly using the flag to promote an American supersonic transport, which resulted in the statute being declared unconstitutional. Smith comments: 'One of the best ways to get rid of a bad law is to apply it to the rich and powerful.'
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