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.
Here’s the story: https://www.youtube.com/watch?v=lJe2Ew-rhx8
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.