Saturday, December 3, 2016


On April 25, 1976 during a baseball game at Dodger Stadium, in Los Angeles, a 36 year old native American named William Thomas and his 11 year old son dashed onto the field and tried to burn an American flag. Chicago Cubs outfielder, Rick Monday, snatched the flag away from them in an episode long revered as the Greatest Play in Baseball.

In the forty years since that historic episode, Monday has been honored many times, and Americans have celebrated his deed as evidence of their reverence and respect for the Stars and Stripes.

At 6:55 A.M. on Tuesday, November 29 2016, President-Elect Donald J. Trump tweeted out this opinion: “Nobody should be allowed to burn the American flag. If they do, there should be consequences – perhaps loss of citizenship or a year in jail.”

Like so many other things Mr.Trump has said, his flag tweet echoed the opinion of the majority of the American people. Even the substantial minority who accept or agree with the Supreme Court’s opinion that flag burning is merely an exercise of free speech mostly feel that desecration of the flag is not something to be encouraged.

Congress adopted the Federal Flag Desecration Law in 1968. It was enacted in response to a series of flag burnings in Central Park, as a generation of Americans recoiled from conscription to fight in the Viet Nam War.

That law, and a number of State laws to similar effect have been ruled unconstitutional by the Supreme Court.

Congress went back to the drawing board in 1989 enacting the Flag Protection Act, which was thought to be less objectionable than the 1968 Desecration Law. This time, there was an outbreak of flag burnings done specifically to protest the new law. Then, in the 1990 case of United States v. Eichman (496 U.S. 310), the Supreme Court again held that flag burning is a form of free speech protected by the First Amendment.  

Over the last 27 years there have been several efforts to muster a two thirds vote in both Houses of Congress in order to propose a constitutional amendment to outlaw flag burning. They have all come up short.

All of which has tempted the Old Judge to weigh in with his opinion.

First of all, it is pretty obvious that burning or desecrating the flag, if speech at all, is symbolic speech. The plain undeniable truth is that flag desecration is an overt action which can be performed for any number of reasons.  

The character of a flag burning; that is the reason why it is done and the effect or consequence of doing it should determine whether the act is right or wrong.

Obviously, a respectful burning of a worn out flag is of a different character from the disrespectful burning of a new one. So here is my suggested flag law:

The burning or other desecration of the flag of the United States in public, for the purpose and with the effect of inciting a riot or other  breach of the peace, or encouraging the destruction of property or injury to persons is unlawful.

Violation of this act shall be punishable by a fine of not more than $5,000 and, or imprisonment for not more than five years.

There is another, more serious motive for flag desecration. Section 3 of the Third Article of the United States Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Therefore, there should be a second section to my new flag law as follows:

If the burning or other desecration of the flag of the United States is done for the purpose of adhering to their Enemies, giving them Aid and Comfort, it shall be Treason and punished as provided by law.


  1. As perfect, eloquent, and legal as these suggestions could be!

  2. Here's my take. The flag is a symbol of the nation, not its government. As such, an attack on the flag is an attack on the nation. Destroying the flag is an act indicating a desire to destroy the nation. It is not political speech about disgreements with the government. Political speech is protected but actions or speech which promotes the destruction of the nation is, in fact, treasonous.
    Chas. Bassos

  3. I like it. Allows for freedom of speech but not unlawful speech that creates imminent lawlessness. And the treason provision, while earnest, would be very hard to prove. Maybe that's good.

  4. Here's a different perspective, and some background, from a retired AF guy who has seen combat in 3 different countries.

    Every US military base has a retreat ceremony on base during which the flag is lowered. All personnel on base at the time stop what they are doing. Military personnel salute toward the flag, or the sound if you are too far away to see the flag, Civilian personnel stop what they are doing and show the appropriate respect. When stateside I always felt that it was a time to reflect on the fact that i was part of a very large team with a mission to accomplish.

    When serving in a foreign country the ceremony is the same except the host country honors precede the US honors ceremony. I always had a different feeling when stationed overseas in a combat situation than when serving stateside in peacetime. In the combat zone case I felt more pride than when stateside. My thoughts typically allowed me to reflect on the fact that I was a member of the US military, a representative of the US, someone just "doing the job they were trained to do", and that the entire military contingent in that theatre had my back. I certainly knew that not everyone back in the States had my back. Many of them assumed that I was an idiot, a killer, a whatever.......but certainly not someone that has the enlightenment that they possess.

    So back to the flag issue. I don't care one bit what someone does to the flag as long as it doesn't cause physical harm to someone/something. All I ask is this. Give others the same freedom of expression without having the thought police charge you with a crime. If freedom of speech allows a person to burn the US flag in a manner that only offends, and does not physically harm, others. I'm OK with that. What I don't accept is that it can be a chargeable crime when I use "hate speech". If I walked into a gathering of folks feeling offended about something I should have the right to offend them without being beaten up, charged with inciting a riot, using hate speech, or whatever charge the thought police care to bring.

    If it's OK to burn the US flag then it should be ok to drive a pickup truck flying the Confederate Flag through a Black Lives Matter protest. I should be able to burn the Koran at a Muslim protest against Trump......and on and on.

    You either have freedom of speech or you don't. Sticks and stones...........well you know the rest.