Flag Burning Amendment Unnecessary and Unpatriotic

Bob Kerrey, who earned a Medal of Honor for his service as a Navy SEAL in Vietnam, argues against amending the Constitution to prohibit flag burning.

Unfortunately, enthusiasm for this amendment appears to have grown even as flag-burning incidents have vanished as a means of political protest. The last time I saw an image of the U.S. flag being desecrated in this way was nearly 20 years ago, when the court issued its decision. Thus this amendment — never appropriate in the oldest democracy on earth — has become even less necessary. But necessity is not always the mother of legislation.


If our First Amendment is altered to permit laws to be passed prohibiting flag desecration, would we like to see our police powers used to arrest an angry mother who burns a flag? Or a brother in arms whose disillusionment leads him to defile this symbol of the nation? I hope the answer is no. I hope we are strong enough to tolerate such rare and wrenching moments. I hope our desire for calm and quiet does not make it a crime for any to demonstrate in such a fashion. In truth, if I know anything about the spirit of our compatriots, some Americans might even choose to burn their flag in protest of such a law.

Real patriotism cannot be coerced. Our freedom to speak was attacked — not our flag. The former, not the latter, needs the protection of our Constitution and our laws.

Flag burning is a particularly vile form of speech. Still, there are no legitimate public policy reasons to restrict it under penalty of law.

Flag Burning Photo 3Flag Burning Photo Rachel CorrieFlag Burning Photo 2

Flag Burning Photo Proper That it is speech is hard to question. Indeed, the very reason it makes most of us so angry to see our flag burned in protest is how powerfully it communicates the message of contempt. Further, burning the flag would be restricted only when done to send that particular message. If the Veterans of Foreign Wars carries out a ceremony burning tattered and faded flags, rendering the proper honors, many of the same people who are outraged by “flag burning” get choked up with pride.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. To me this is exactly as the process is supposed to work. We have the first amendment, which guarantees among other things our right to free speech. We have carved out some very limited limitations to that free speech as part of common sense (e.g. yelling “Fire” in a crowded theater and some time/manner/place limitations). We have some speech that is embraced by only a very small number, is found disgusting but not worth another exception by more and is found to be just wrong by a majority.

    So unlike the McCain limitations on political free speech, the people who don’t like the flag burning are going through the proper political process to carve out a limitation. They have every right to make their case for why such an amendment is in the country’s best interests. The opponents, such as your self, also get their day in the court of public opinion as to why the amendment shouldn’t go through. The country won’t end if the amendment is passed or not. But the mechanism on how we should handle contentious issues is being played out.

    If W was really who is critics claimed he was, we would be seeing armies of red, white and blue shirts attacking those who protest the war, including by burning the flag. Instead, we see the wheels of government grinding slowly towards a resolution on this amendment.

  2. PatriotPete says:

    The amendment is not a “flag burning amendment”–it merely allows congress to “prohibit the physical desecration” of the flag.

    One of the major acts of desecration has been the cheapening of the flag by every nimrod politician and his brother using it as a piece of jewelry.

    If the amendment would allow the government to be able to fine someone everytime they wear one of those intolerable flag lapel pins or put a magnetic flag ribbons on their car, that would be excellent.

  3. madmatt says:

    You also would have to define flag…is it ok to burn a Tommy Hilfiger shirt or a tshirt with a flag on it? If so can I silkscreen a flag onto a sheet and burn that?
    If you want the flag to be respected, the actions of the country need to be respectable….lately we have been far from that.

  4. RA says:

    You can’t protest outside an abortion clinic without being prosecuted and bankrupted. You can’t say a prayer or read a bible in government school. You are forced to take man hating feminist propaganda courses on many colleges. You can’t pay for POLITICAL advertisments 60 days before an election.

    Don’t tell me we cannot or should not make it a felony to burn the flag. They can still do it but they will have to pay the penalty.

    It always boggles my mind when people who call themselves conservative are suffering from a severe case of ACLUitis.

  5. G A Phillips says:

    I’ll tell you what, burn a flag in front of me and see what happens.

  6. Matt says:

    I rarely disagree with you, James, but this comment is rather specious:

    It the Veterans of Foreign Wars carries out a ceremony burning tattered and faded flags, rendering the proper honors, many of the same people who are outraged by â??flag burningâ?? get choked up with pride.

    The VFW, while carrying out a duty codified in federal law, should be honored. Would that more people had that kind of respect. To compare that ceremony to a gaggle of protestors showing off their liberal cred is ridiculous and utterly lame.

    Were I on the protect the flag bandwagon, I’d be proposing to have burning it classified as hate speech. To be sure, there are people as angered by the act as much as others when they hear a racial epithet.

    I really just wish we could get to the point where we had a right to free speech, but no right not to be offended. That, my friends, would be utopia.

  7. madmatt,

    Your comment is mostly off-topic, and to the extent it’s not, it’s wrong. You seem to be using your displeasure with the current administration to justify flag burning, when in fact it’s justified as free speech, regardless of your feelings about the current administration.


    Your hypothetical about being on the flag-burning bandwagon makes the situation much worse. There should be no such thing as hate speech since criminalizing it — on largely arbitrary grounds — borders on thought crimes. I can sit around hating people as much as I want and it does them no harm. When I say hateful things, my right to free speech far outweighs anything they might feel because of it.

    In fact, you’re turning to how people feel about speech to determine its propriety. There are any number of pissypants people out there who are ready and waiting to be offended.

  8. DL says:

    The more they burn the flag the more they expose their hatred of America. Let this dog die of its own accord. Their purpose is to get the conservatives riled – this amendment merely guarantees them the success they so desire.
    Pick and choose the battles you fight -don’t get suckered by the enemy so easily. Their tactics are good because they work -we should learn from them and bait them more often. Let them whine and scream.

  9. Matt says:

    My hate speech hypothetical was mostly tongue in cheek, but I’m surprised someone hasn’t tried it.

    I do totally agree with you, Robert. A society where one’s loftiest goal is to not offend anyone else would not be worth much.

  10. Matt,

    Yeah, I figured you were being a wiseguy, but the notion of “hate speech” gets me steamed. I’m pretty much a free speech absolutist and see hateful speech as a price you pay for living in a free country.

    Speech that is incitement to violence (NOT incitement to hatred) shouldn’t be tolerated because it leads to violence, though.