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What is a Flag? What is the American Flag?

What Does a Ban on Flag Burning or Flag Desecration Protect?

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If laws against burning or desecrating an American flag are to have any value, it must be clear to everyone just what is meant by an ‘American flag’ to begin with. If it’s not clear, the laws will be struck down as unconstitutionally vague. Intuitively, it might seem obvious what an American flag is supposed to be, but a closer examination of the issue reveals that it’s not so obvious and clear after all.

Most self-styled “protectors” of the American flag tend to seek bans on desecration of the flag generally, but actual cases tend to focus just on burning the flag. Because the concept of “desecration” has its own ambiguities which are explored elsewhere, we’ll ignore that for the purposes of this article on look instead at just burning the flag.

A typical dictionary definition for “flag” will read something like “A piece of cloth, usually rectangular, of distinctive color and design, used as a symbol, standard, signal, or emblem.” An American flag would thus be a rectangular piece of cloth with red and white stripes with a blue field containing fifty white stars in the upper left corner. Anyone burning this would be burning an American flag.

What if we change the composition of the item? What if we have a rectangular piece of paper with red and white stripes plus a blue field containing fifty stars? If I burn that, am I burning an American flag? What if I make it out of wood? What if I create that design with frosting on a cake? Would any of these things qualify as an American flag, such that burning them would be illegal?

What if we change the distinctive coloring slightly, for example by making the stripes grey and reddish-brown. Would a rectangular piece of cloth with grey and reddish-brown stripes plus a blue field containing fifty stars qualify as an American flag? What if we change the design slightly by giving it 45 or even 55 stars. Is it still an American flag? What if the stripes appear as zig-zags instead of straight?

We could even mix and match multiple options from the above: is a piece of paper grey and red stripes, plus a blue field of 48 stars, an American flag which would be illegal to burn? How about a piece of wood with white and reddish-brown zig-zag stripes plus a blue field of 52 silver stars?

None of these items technically qualify as a “flag” or an “American flag,” so burning them should be perfectly legal. Such items are, however, clearly designed to represent an American flag. Even if they are technically incorrect in some way, the symbolism is meant to be the same and many would apply bans on burning the American flag to burning the above items, too.

The law isn’t much help, either. This was the definition of “flag” according to Texas law when the Supreme Court heard the Texas v. Johnson flag burning case. Most current state laws which prohibit flag desecration and which also define what a flag is are worded similarly — and similarly broadly — to this one:

    The term ‘flag of the United States’ as used in this section, shall include any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.

Any picture or representation: burning a photo or drawing of a flag violated the law.

Any part thereof: burning a small swatch of a flag violated the law.

Any number of stars and stripes: burning a 6-striped flag with 10 stars violated the law.

Without deliberation: if the similarity to a normal flag is close enough that a person immediately assumes that it is supposed to be or represent the flag, then burning it violated the law.

Remember that when a flag is old and needs to be disposed of, federal code stipulates that it should be burned rather than thrown in the trash. Would this be covered by a ban on burning the American flag? No, because this action is deemed respectful and therefore respectable. Bans on burning an American flag thus are not meant to protect a piece of cloth from flames, but instead to protect a symbol from being interpreted in certain ways and from being used to communicate certain messages.

This is why laws against flag burning have repeatedly been struck down. Courts recognize that it’s impermissible to try to insist that there be only one acceptable meaning for the American flag or to ban certain messages for being unpopular and offensive. Self-styled protectors of the flag now seek to amend the Constitution in order to overturn freedom of speech.

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