Flag vote to be close, but is it necessary?

By Bill Adair
© St. Petersburg (Fla.) Times, May 13, 1999

WASHINGTON -- When Edward Hasbrouck set fire to the American flag, his first thought was that somebody might get hurt.

The 1,500 demonstrators with him on the San Francisco street in February 1990 shared his dislike of President Bush and were happy to see the flag go up in flames. But the group was so rowdy that Hasbrouck was afraid someone might get pushed into the bonfire.

Finally, once he was sure no one would get injured, Hasbrouck got a chance to appreciate the fire as it consumed the flag and an effigy of Bush. It was Hasbrouck's way of saying he disagreed with a flag-burning law supported by the president, who was attending a political event across the street.

"We wanted to make clear that a government that was trying to criminalize dissent didn't speak for us," Hasbrouck, 39, a San Francisco travel consultant, recalled. "It's a classic fascism technique -- to outlaw dissent."

Later this month, the Senate is expected to vote on a constitutional amendment that would allow Congress to outlaw flag desecration, including burnings like Hasbrouck's. The vote will be extremely close. Supporters say they already have enough votes in the House of Representatives and state legislatures to pass the amendment, so the Senate is their last big hurdle.

Sen. Orrin Hatch, R-Utah, the author of the amendment, calls it "a matter of patriotism, of standing up for the one symbol that blesses and binds us all together."

But opponents say the rare occasions when people burn flags do not warrant a change to the Bill of Rights.

"I hate it when a couple of jerks a year desecrate the flag," said Sen. Paul Wellstone, D-Minn. "But I don't think we should amend the Constitution. The First Amendment is the core rule we should live by."

'Shoot him on the spot'

"People just didn't pay that much attention to the flag," said Robert Justin Goldstein, author of Saving Old Glory: The History of the American Flag Desecration Controversy

It wasn't until the Civil War that people began to revere the flag. On the eve of the war, after Louisiana secessionists threatened to seize a federal ship, U.S. Treasury Secretary John Dix sent a telegraph that said, "If any one attempts to haul down the American flag, shoot him on the spot."

A year later, William B. Mumford tore down an American flag from a U.S. mint to show his opposition to the federal occupation of his city. He dragged the flag through the mud and shredded it.

That didn't sit well with a flag-loving Union general. He had Mumford arrested, convicted of treason and hanged.

By the turn of the century, the flag seemed to be everywhere: on whiskey bottles, lemonade stands and door mats. That offended a growing legion of people who saw the flag as a sacred emblem. They convinced the states to pass the first desecration laws.

Since then, there have been several flurries of desecration cases, many involving anti-war protests. Burning is the most notorious type of desecration, but Goldstein said people have also been charged for pouring paint on a flag, displaying one upside-down and wearing flag patches on their jeans. In 1917, an Indiana baker was fined $5 for saying, "To hell with the flag."

The landmark Supreme Court decision on flag burning involved a protest against President Ronald Reagan during the 1984 Republican convention in Dallas.

"America, the red, white and blue, we spit on you!" the protesters chanted as a flag was burned. Gregory "Joey" Johnson was arrested and convicted of "desecration of a venerated object."

The court overturned his conviction in 1989 in a 5-4 decision that said flag burning was a form of political speech. Justice William Brennan wrote: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

'A strong value system'

In I Love Old Glory, Hatch tells of a schoolboy pledging his love to God and country

"May he grow up in a land of honor
Never to see his flag
Trampled and torn at the hands of the faithless
Burned like a common rag."

Hatch, chairman of the Senate Judiciary Committee, wants to overturn the Supreme Court decision with a 17-word constitutional amendment that would give Congress the power to prohibit flag desecration.

Hatch said the amendment will teach young people to respect an important national symbol.

"Without a strong value system, our children cannot distinguish good from bad or right from wrong," Hatch said. "The discussion of this amendment in Congress and in the state legislatures will serve as a catalyst to refocus America on the patriotic and self-sacrificing values that made us great."

Florida's senators, Democrat Bob Graham and Republican Connie Mack, support the amendment.

"In a country as diverse as the United States, the national flag is a point of common reference, a statement of our shared values," Graham said. "Acts that desecrate the flag desecrate our essential national unity."

The flag is a "symbol of America's freedom and should be protected," Mack said. "A person has the right to make whatever statements they want. But physical desecration of the flag is another step."

'I hate America'

Tyler, 34, said he was making a "bold statement to people of the world in a language they would easily understand.

Like many others who have burned flags, Tyler does not come from the political mainstream. He is a supporter of the Revolutionary Communist Party, which he said supports an armed revolution in the United States.

"I hate America. I am completely opposed to America," he said Wednesday. "I think masses of people need to rise up and cause a revolution. Here's a country that's history is blood-soaked and that millions of people would like to see radically changed."

Opponents of the flag amendment don't necessarily agree with Tyler's politics, but they say he has a right to express himself.

"It's easy to be in favor of freedom of speech if that speech is always pleasant and agreeable. The test of your commitment to freedom of speech is when that speech is disagreeable," said Paul Tash, executive editor of the St. Petersburg Times and chairman of the Freedom of Information Committee of the American Society of Newspaper Editors.

Tash said the flag amendment would "put an asterisk" on the First Amendment. "Why would we do that?"

Former Sen. John Glenn, D-Ohio, told Hatch's committee last month that "anybody burning a flag in protest is clearly saying something."

"They are making a statement with their body language that maybe speaks far, far louder than the words they may be willing to utter," Glenn said.

The amendment narrowly failed in the Senate in 1995 and opponents are hopeful it again will fall one or two votes short. North Dakota Sens. Byron Dorgan and Kent Conrad, two Democrats considered key swing votes, said last week they plan to oppose it. Instead, they are supporting a narrowly worded bill by Sen. Mitch McConnell, R-Ky., that would allow stiff penalties for damaging a flag with an intent to incite violence. The bill also would allow tough penalties for stealing and damaging a flag belonging to the federal government or stealing and damaging a flag on federal land.

Amendment supporters say the McConnell bill is weak and just a ploy so opponents can say they are opposed to flag burning. But Dorgan said he prefers to deal with the issue by law rather than through the Constitution.

"We should amend the Constitution only as a last resort."

-- Times researchers Kitty Bennett and Caryn Baird contributed to this report.