Sunday, June 25, 2006

No game of "Capture the Flag" would be complete without the lawyers

My newspaper column today -- previewing the Senate debate this week over whether to approve a constitutional amendment banning flag desecration -- was necessarily focused on (a) the current plans by Republicans to vote Yes and thus presumably corner the mom-and-applie pie market, and (b) the current concern, shared by a dozen or more Democrats, that a No vote will somehow brand them as defilers of Old Glory.

But for all the emotion attached to this hot-button contretemps -- one congressional chamber or the other, at the GOP's urging, has brought it up at least six times since 1990 -- it is rarely pointed out that, even if the Senate and House both OK an amendment by the requisite two-third margin, the Bill of Rights won't suddenly be altered overnight. Yes, this would be the first time ever, in two centuries, that politicians in DC will have slapped caveats on the First Amendment right of free expression, but actually this would be beginning -- not the end -- of the battle.

Three-fourths of the states would have to approve the measure, and, even after that, the lawsuits would be filed and the courts would be compelled to get involved. The main point of dispute would be the language of the amendment itself: "Congress shall have the power to prohibit the physical desecration of the flag of the United States."

Well, what's "desecration"? Obviously, it's not just flag-burning, or else it would specify that. So since it's not just flag-burning -- would this curb on free expression extend to, say, sewing a little flag onto the butt of your jeans? Wearing the stars and stripes on your head, as a sweaty do-rag? Flying it upside down? Wearing one as an armband during a protest? What about commercial uses, such as putting the flag image on a bottle to sell beer? (Back in 1907, the state of Nebraska banned that very practice -- and the U.S. Supreme Court upheld the ban.) And how about those pictures of President Bush during the '04 campaign, pleasing his fans by autographing their flags?

As Robert Corn-Revere, a Washington attorney specializing in First Amendment law puts it, the language in the GOP-driven amendment would provoke "a true legal conundrum."

But that's all in the (potential) future. All that matters, for now, is the political narrative that Republicans are hoping to run on in '06: "We'll protect the flag, they won't."


A goof in my Sunday column: I wrote that GOP Sen. Mitch McConnell hails from North Carolina, but it's actually Kentucky.