It’s common to find politicians â€" both Democrats and Republicans â€" exploiting people’s feelings about the American flag by advocating laws that would ban burning the flag. Instead of just limiting their attacks on flag burning, which is already invalid, many politicians go further and attack ‘desecration’ of the flag generally. Laws against desecrating the flag are meaningless, though, unless it’s clear what we mean by ‘desecration’ in the first place.
Using the term ‘desecration’ is problematic because the concept is religious in origin. You can only desecrate something that is sacred, and something is sacred when it is part of a religious belief system â€" a sacred object is something physical which connects a person to the divine, the supernatural, the transcendent, or the numinous.
If the American flag is sacred, then how and why? Isn’t treating the flag as sacred a type of idolatry, something which should be opposed by the same religious conservatives who are usually on the forefront of efforts to protect the flag? The fact that they almost reflexively treat the flag as sacred, without any apparent recognition of the problems inherent in doing so, is arguably evidence demonstrating the extent to which they are merging American nationalism with religion â€" and to the detriment of both.
Setting aside these questions for the moment, we can’t assume that desecration is limited to just burning â€" but what else falls under the label? Is it desecration to splash the flag with blood in protest of the people killed by American foreign policies? Is it desecration to replace the white stars with a white peace symbols to oppose American militarism? Is it desecration to replace the white stars with white crosses to encouraging further blending of patriotism with Christianity?
Surely desecration can’t be limited to just doing things to the flag - can’t we say that doing certain things with the flag also qualify? Is it desecration to use the flag in advertisements selling cars, beds, or life insurance? Is it desecration when politicians wrap themselves in the flag before proposing to undermine the rights which the flag is supposed to stand for? Is it desecration to treat the flag as an idol which can only have one permissible and “politically correct†meaning?
It is instructive to look at state laws banning the desecration of American flags. These laws typically make it a crime to “cast contempt,†which is necessarily the communication of attitudes and ideas. Many make it a crime to do so “by word†as well as by act. It’s common for these laws to prohibit defiling the flag, another religious concept. Prohibition against using the flag in advertisements is almost universal.
Mere laws banning the desecration of the American flag cannot survive constitutional scrutiny. First, they only exist to ban the expression of certain ideas which powerful majorities find offensive, and that’s an abridgement of free speech rights. The exact same actions done in different contexts and with different intentions do not draw people’s ire or police involvement. It’s the message being targeted, not the action.
Second, laws banning the desecration of the American flag are worse than those which simply ban the burning of the flag because they insert a religious element to the mix. The government has no authority to transform the American flag into a religious icon with sacred properties or meanings. This would be a slap at irreligious Americans who have no religion as well as religious Americans who take seriously the idea that their religion stands outside nationalism.
Finally, and related to the previous point, the government doesn’t have the authority to insist that the American flag have any specific meaning to people â€" but this is what they are doing when they try to insist that it be treated only in certain ways. People who burn the flag are treating it as a symbol of everything which the government does wrong, not as a symbol for basic liberties and freedoms. People who object to flag burning see it exclusively or primarily in the latter sense; bans on flag burning are thus attempts to copyright the meaning of the flag and exclude ways of attributing other meanings to it.
Because court decisions have consistently gone against those who would censor the “desecration†of the American flag, self-styled protectors of the flag are investing their time and money in efforts to amend the Constitution to permit such laws. This would create an explicit exception to the First Amendment guarantee of free speech by giving the government the authority to single out particular messages for censorship, repression, and prosecution.
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