Flag Desecration Amendment - Potential Interpretations of The Amendment

Potential Interpretations of The Amendment

In 2005, the First Amendment Center published a report titled "Implementing a Flag-Desecration Amendment to the U.S. Constitution: An end to the controversy ... or a new beginning?". The report pointed out that the effect of the proposed amendment would likely be challenged on collateral matters in ways that will require the courts, and ultimately the U.S. Supreme Court, to parse the exact meaning of ambiguous terms contained therein. The focus of the report was on the meanings that would be assigned to the phrases, "physical desecration" and "flag of the United States."

The phrase "physical desecration" might be open to various interpretations concerning the uncertainty of the context of desecration. For example, uncertainty exists over whether the term includes the wearing of the flag as clothing, receiving a tattoo of the flag, or flying a flag upside-down. It is uncertain what can be interpreted as "physical desecration", as it may or may not require that the flag actually be physically damaged, or even merely made to appear damaged. It is also unclear whether "virtual flag desecration" (which could be defined as an artistic depiction of flag desecration, a computerized simulation of flag desecration, or burning any object which has a flag on it) would be subject to the amendment. There is also a question over whether the perpetrator of such an act is required to have a specific intent to "desecrate" in order to be prosecuted. The Report of the 108th Congress, in proposing this amendment, stated:

"...'desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action..."

This seems to suggest that the amendment will apply only to acts where the actor intends offense.

Since the amendment would allow prohibition against only "the flag of the United States," it could be construed as only applying to flags that are the property of the United States government, as opposed to private property. This language could also be interpreted as being limited to flags that meet the exact specifications for the United States flag laid out in federal law. It is unclear what effect the amendment would have with respect to former flags of the United States, such as the 48-star flag that preceded the admission of Alaska and Hawaii, or the original 13-star Betsy Ross flag, or how far from the traditional definition of a flag a symbol could deviate (for example, having orange stripes instead of red) before falling out of the ambit of the amendment's jurisdiction.

The First Amendment Center concluded that the Supreme Court was likely to interpret this language narrowly, resulting in decisions that would not satisfy either proponents or opponents of the proposed amendment. Other possible interpretive issues were not addressed by the First Amendment Center report.

First, no scope is stated in the amendment. The Supreme Court has previously held that Congress may prohibit foreign acts that have an effect in the United States, in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and certainly the desecration of the flag on foreign soil would likely have the intended effect of offending United States citizens. However, the general rule is that a law does not apply outside the United States unless the language of the law expressly provides for such an application. It is therefore unclear whether Congress would be able to prescribe punishments for those who burn the flag of the United States in a foreign country.

Second, the amendment would empower Congress to act, but not the states. Congress might interpret the amendment as giving it the power to ratify state laws to this effect, as it does for interstate compacts. The Court may find that the amendment has a preemptive effect, acting as a bar to anyone other than Congress itself passing such regulations. If so, then cases involving flag desecration would likely be restricted to the U.S. federal courts, as are cases involving criminal violations of copyright law. These are the only criminal courts over which Congress has jurisdiction to permit federal crimes to be heard.

All of these questions would necessarily await the interpretative role of the courts, and such a process would likely require several years for the resolution of each issue.