THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, August 13, 1995 TAG: 9508110377
SECTION: COMMENTARY PAGE: J1 EDITION: FINAL
SOURCE: BY ALEX MARSHALL, STAFF WRITER
LENGTH: Medium: 100 lines
When Chinese demonstrators filled Tiananmen Square in 1989, calling for democracy, freedom and political liberalization, a protester lit the red flag of the Communist government ablaze.
Government reaction was swift. Chinese police arrested the man.
Phil Budahn, spokesman for the national American Legion, which has led the effort to outlaw flag burning in the United States through a constitutional amendment, said he doesn't flinch when people accuse the Legion of wanting the United States to imitate totalitarian countries.
``The folks calling the shots in Peking are not responding to a grass-roots effort,'' Budahn said from his Washington office. ``What we see in a totalitarian country is a group at the top making laws for everyone.''
What people keep missing about the drive to pass a constitutional amendment against flag desecration is that it stems not from conservative politicians playing politics, but from the deep-felt convictions of millions of Americans who don't want to see a cherished symbol disrespected, Budahn insists.
It's those Americans - war veterans, senior citizens, civic league leaders - who knocked on statehouse doors all around the country and drove the issue up the ladder until Congress is now on the verge of passing such the amendment, Budahn says.
Those citizens are why 49 state legislatures have already passed resolutions urging Congress to adopt the amendment, he says.
Despite the drive toward approval, some people have asked why is Congress moving now to pass such an amendment. Flag burning, seen at protests in the 1960s, is hardly epidemic, even supporters of the bill say.
``It's unfortunate that the Supreme Court has forced the Congress to go to such extreme measures to remedy what is essentially a minor problem.'' said Ralph Reed, executive director of the Christian Coalition.
Budahn says it isn't the point whether such a law is needed; it's that people want it. The American Legion has spent years coordinating a grass-roots drive to put this amendment on the Constitution.
The Citizens Flag Alliance, led by the American Legion, has a membership of more than 30 million people through more than 100 groups that make up the alliance, Budahn said. The groups range from the Knights of Columbus to the Fraternal Order of Police.
``This is good old-fashioned democracy at work,'' Budahn said. ``This is something John Q and Jane Q wanted.''
Sen. Orrin G. Hatch, R-Utah, who is leading the effort to pass the amendment through the Senate, agrees.
``The Constitution belongs to the entire American people, not just law professors, not just lawyers, not just editorial writers,'' Hatch said in a July Senate speech. ``Make no mistake: The American people resurrected this amendment. They will keep it alive until it is ratified.''
The proposed amendment does not prohibit flag desecration. It gives Congress and the states the power to pass such laws.
The nine members of the Supreme Court have not commented on the proposed amendment but have been almost evenly divided on laws against flag burning.
In 1989 and 1990, the Supreme Court declared both a Texas law and a law Congress passed unconstitutional. By a 5-4 majority, the court said laws barring desecration of the flag violate the First Amendment right of free speech.
The court's decision directly led to the drive to amend the Constitution.
As the Senate moves to consider the amendment, opponents have raised various objections. They say the amendment would trivialize the Constitution, would be unenforceable and would violate the right of free expression.
``It is a desecration of the principles of this country in the name of preserving the symbol of those principles,'' said Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute. ``I am adamantly opposed to flag burning, but defend the right to burn the flag.''
To all these objections, amendment supporters counter with arguments about the history of the country and the value a society gains by protecting its sacred symbols.
``There are so many ways freedom of speech is curtailed,'' Budahn said. ``You can't take a megaphone down to Brambleton Avenue during rush hour to deliver a political message. There are libel laws. We are coming to accept the notion of hate speech and attach penalties to that.''
Justice John Paul Stevens, leading a dissent to the Supreme Court's 1989 decision, said ``In my considered judgment, to sanction the public desecration of the flag will tarnish its value . . . That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available alternative mode of expression . . . be employed.''
Such a law could be a bigger boon to lawyers than to patriots, some people have said, because it would wind up with courts determining what defines ``desecration,'' or even what defines ``a flag.''
Is someone wearing a stars-and-stripes bikini desecrating the flag? Or is a bikini top, which does not have 50 stars and 13 stripes, even a flag at all? Would it be legal to burn a flag with 14 stripes and 51 stars, even though it looked at first glance like an official flag?
Budahn says such questions miss the point.
``A flag is a banner we put on a pole. It's a not a T-shirt, it's not a bathing suit. No one runs a T-shirt up a flag pole and salutes it. The image of the flag is not the flag.''
Budahn also notes that scores of states had such laws on the books for decades, before the Supreme Court declared them unconstitutional, without apparent ill harm to the First Amendment.
There are many ways to protest the actions of a government. You can write a speech or stage a demonstration. It should not be such a burden not to engage in the one action that offends so many, amendment supporters say. by CNB