Here are some scenarios of usage of the flag of the United States, then some questions about laws we might pass against flag desecration.

In the scenarios, assume that the alleged perpetrators own the flags, and our issue is NOT whether they are acting sensibly, in good taste, effectively for a cause, or in violation of other laws of any sort, but only and specifically how anti-flag-desecration laws are to apply.

I. SCENARIOS

Pictures of flags

1) Someone makes good pictures of U.S. flags, one- or two-sided, on paper or cloth — by color photography, color photocopy, or computer with ink jet printer — and then publicly tramples and burns the pictures.

2) An iconoclast uses small cloth pictures of flags as handkerchiefs, and distributes large ones as blankets to New York's sidewalk homeless.

3) A protester projects a flat-out picture of a flag onto a white wall and then hurls mud or paint or whatever onto the image.


Combinations

4) A flag is mounted over the face of a TV set in a darkened room and videotapes are run, clearly visible, showing the My Lai massacre, visually superimposed on the flag.

5) A similar effect is achieved by hanging the flag normally, with clearly perceived and disturbing pictures projected onto it.

6 )A flag is left for many months in strong sunlight, the shape of a Nazi swastika protected from fading; the process and result are displayed.


Illusions and Puzzles

7) A magician burns a flag and dumps the remnants into a demonstrably empty can, then pulls an (the?) unblemished flag from the can.

8) An artist displays an apparently mutilated flag consisting in fact of several intact flags variously folded.

9) An artist displays a badly mutilated "U.S. flag" in cyan-black-orange; a bright strobe creates for viewers a red-white-blue afterimage.

10) A thoroughly indestructible metallic flag is soaked with a flammable liquid and "burned" in a demonstration.

11) A protester wall-mounts a large flag behind cellophane, then paints or smears obscenities on the transparent covering.

12) A computer-animation programmer creates a realistic video of what seems to be a U.S. flag burning to charred shreds.

13) A tinkerer has made a Russian-roulette-type of device which either has or hasn't mutilated a flag in a permanently sealed safe. Nobody knows.


When did it happen?

14) Political activists prepare for possible future demonstrations: they burn and mutilate flags before anti-desecration laws are enacted.

15) They publicly display later not the desecrated flags, but only video-taped documentation of the destruction.


Where was/is it happening?

16) Protesters take flags to Canada, or the high seas, or to the grounds of a foreign embassy, mutilate them and bring them back.

17) Dissidents with video gear relay back to the mainland in real time a flag desecration taking place on a private ship on the high seas.

18) A group of consenting adults gather for a private ceremony of anger and lament; flags are torn and burned.

19 )A mangled flag is hung in a private dwelling, such that it can be seen from a public sidewalk with slight, or moderate, or extreme difficulty.


Was it ever a flag?

20) Someone constructs an already-desecrated flag by sewing together burned fragments of red, white, and blue cloth and uses it in demonstrations.

21) This never-was-a-flag, while being used in a protest demonstration, is then and there torn "more" and burned "again."

22) At the end of a rally, four (or many more) separate pieces of what had seemed to be an intact U.S. flag are taken down and burned separately.


Substitutes

23) Demonstrators burn bunches of red-white-blue streamers, copies of the bill of rights, maps of the United States, or pictures of Uncle Sam.

24) A protest flag arises: red-white-blue enough to be reminiscent of the U.S. flag with the caption NOT PROUD, NOT TODAY; it is widely abused.

25) Protestors burn former flags, or slightly or grossly redesigned flags, or flags of states, flags of other countries, or the Confederate flag.


Disposal of unwanted flags

26) On July 5, there are lots of left-over flags on trees and sticks along yesterday's parade route. Nobody knows just what to do with them.

27) A wind-tunnel service is set up for accelerated tattering of unwanted flags by natural wind action, so they can then be burned respectfully.

28) Agitators and flag-waving patriots offer little flags to multitudes who accept them before realizing that they now can't discard the handout.

29) A known dissident, accused of burning a flag in his or her back yard, says it was the final disposition of a worn flag.

30) A person, whose religion forbids display or even ownership of religious icons, discretely burns a U.S. flag that was given to him or her.


Mockery and sarcasm

31) To every American flag that passes by in the 4th of July parade, a zealot of some sort gives a Nazi salute, and shouts "Heil the flag!"

32) Ecologists plant U.S. flags at garbage and waste sites, soiled beaches, and junkyards which they say corrupt what was "America the Beautiful."

33) An artist uses a thousand tiny flags as minute elements to form an obscene picture or the letters of an obnoxious statement.

34) The American flag is displayed in the presence of and on par with flags and symbols of fascism, tyranny, the occult and devil worship.


Stories and Dramatizations

35) Fictional stories describing flag desecration are dramatized in movies or television by means of animation, or with still or moving pictures.

36) Accidental or deliberate flag burning is presented by documentary footage or re-enactment in movie or TV newscasts or entertainment.

II. QUESTIONS

What is the intent of the laws?

1) What is to be illegal — a kind of act, or acts of certain meanings, or both? Does the intent of the perpetrators matter? Is it crucial?

2) Can acts of flag desecration committed privately, or by children or foreigners, or messages conveyed personally, be illegal?

3) Can the environment of a displayed flag constitute a desecration of the flag? Shall legality of flag use in advertising depend on what's being advertised, legality of use in clothing depend on what's being adorned?

4) Is a purposefully created and/or displayed record or illusion of a flag desecration also in itself a desecration?

5) If certain types of flag-messages are to be illegal, can the laws be justified in terms of appropriate precedents or established principles?


What is a flag?

6) Can a picture of a flag also be a flag? A picture of a picture? Isn't every flag some sort of copy? Isn't every copy some kind of picture?

7) What quantity or configuration of flag fragments constitute a criminal act when displayed? Can display of an obvious non-flag be a crime?

8) Shall there be laws against the construction of defective flags? How far from a "real" flag must some other object be in order to be legal?


Victims

9) Is flag desecration a new kind of crime without clearly identifiable victims? Who are the victims — "everybody"? Have they suffered more than they do from vitriolic speeches and writings that damn Americans?


Where and When

10) Can we possibly make it a crime to have desecrated a flag outside the U.S. or before the laws were enacted?


Church and State

11) These words — desecration, sacred, holy, religion — are very closely related; is not formally declaring the flag sacred equivalent to government institutionalization of religious icons?

12) Should not the emotionally central icons of any group be equivalently protected: those of all religions, cults, and social and ethnic groups?


Ownership of Mutilated Flags

13) Shall it be a crime to own a mutilated flag? How about a period of grace for surrendering them or documenting their legal misfortune?

14) Shall it be a crime to abandon work on a partially constructed flag? to own such a flag? How long is too long for flag construction?

15) Should not flags be treated as a controlled substance, serial-numbered and tracked by a system of accountability for the well-being of each?

16) How shall final disposition be supervised so that each instance can be clearly classified as either an act of respect or an act of derision?


Restrictions on a person's own property

17) Do anti-flag-desecration laws introduce a new principle restricting use of a person's own property? If not, is the matter not already covered by laws such as those on conspiracy, obscenity, health, zoning, etc.?

III. SUMMARY

Presumably the flag is a symbol for the country, and its normal display is a statement, using this symbol, about the country or its actions.

Consider an actual or apparent mutilation or mockery of an actual or apparent flag (or the actual or apparent result or documentation of such an act), or a fictional account of such an act:

Is it (1) simply an act alone, with no particular meaning, or (2) an alternative statement about the country and its behavior, or (3) a statement about the symbol for the country, or (4) a statement about flag display — a statement about statements?

Can't it be any one of these? Shouldn't guilt and punishment depend on which of these things it is, and if a message, what the corresponding explicit statement would have been? Can we in each instance know?

If all of the required definitions are broad enough for the laws to be effective, do we not jeopardize the freedoms we have enjoyed in the use of flags, flag allusions and flag motifs — in art, crafts, cartoons, satire, illustration, theater, movies, television, clothing, furnishings, decoration, partying and celebration, reporting, campaigning, fund raising, logos, business and advertising? And in political criticism, which we have historically and staunchly defended against restriction?

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Our thanks to Lou Katz and Ken Abrams for suggestions.

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