INTRODUCTION: The Supreme Court has held that protests with an American flag are free expression protected by the First Amendment. But Utah Sen. Orrin Hatch disagrees. He wants to curtail speech when it comes to the flag and has proposed an amendment to the Constitution to do it. Utah's other senator, Bob Bennett, is staunchly opposed. With a Senate vote on Hatch's amendment scheduled in a few days, the Herald asked a dozen war veterans like Fairfield mayor Lynn Gillies where they stand on freedom and the flag. Their views, included in this Flag Day report, are food for thought.

FLAG AMENDMENT RAISES ISSUES AT HEART OF THE AMERICAN SYSTEM

The newest proposed amendment to the U.S. Constitution is a simple 17 words: "Congress shall have the power to prohibit the physical desecration of the flag of the United States."

It's old territory for Congress; the same amendment has come up half a dozen times since 1989, when the Supreme Court ruled 5-4 in Texas v. Johnson that burning a flag was considered speech and therefore fell under the First Amendment. A year later the court upheld its decision, and the six or eight reports of public flag desecration became undeniably legal, although still distasteful to most Americans.

But whether distaste translates to a desire for a law against it varies from poll to poll.

A 2005 survey commissioned by the Citizens Flag Alliance concluded that 64 percent of those polled think making flag desecration illegal is "extremely" or "very" important. Those numbers have spurred Utah Sen. Orrin Hatch to author an amendment to the Constitution. He says the American people want their government to take action.

But another 2005 survey, this one commissioned by the Freedom Forum's First Amendment Center, shows that 63 percent of those polled say that while they object to flag desecration, they do not believe the Constitution should be amended to prohibit it.

Different surveys, different results

One of the most popular arguments against the amendment is that it violates the freedom of speech provided by the First Amendment and developed through a long history of court precedents, said Brigham Young University political science professor Richard Davis.

That's how the majority of the Supreme Court saw it 17 years ago and that's how it's upheld today. This amendment, if it passed, would most likely trump the First Amendment, Davis said.

"This amendment is more specific in language," while the First Amendment is vague. "What you're essentially doing is 'we believe in the First Amendment, but with this exception.' "

Davis calls the amendment a "wedge issue," a way to garner popular support among constituents while avoiding touchy subjects like the Iraq war, the economy and health care. Because flag desecration is an emotional issue, representatives who are not in favor of the amendment have to publicly support it or risk infuriating their constituents.

"That has become unfortunately a common tactic, to force opponents of some wedge issue like this to go on record opposing it, and then suggesting these people are somehow un-American, or not supportive enough of America, or whatever," he said. "That's why this keeps coming up."

Not true, Hatch said, though election years are a good time to bring issues up because lawmakers are forced to take a stand.

"This is not a matter of winning or losing to me," he said. "This is for my brother, my brother-in-law and my other brother-in-law." His relatives died or were severely injured in combat. "This is for my brother and for all families similarly situated."

Hatch also wants to send a clear message to the Supreme Court that Congress, and through it the people, make decisions for the country, and judges can't change the Constitution at will.

"It's a way of letting the courts know that the people and the Constitution control this country and that they should not be making activist decisions," he said. "That's a big issue. To me that's more important than almost anything else."

But one man's activist decision is another man's responsible consideration of the law. For more than 200 years, the court's role has been to interpret the Constitution, and throughout that time its decisions have been hailed as solid judicial review by supporters and activist by detractors.

After the famous Marbury v. Madison decision that established the principle of judicial review that has been a bulwark of the American system, Thomas Jefferson derisively called John Marshall, who wrote the decision, "the crafty chief judge."

Of note in the 1989 case on flag desecration is that of the "five unelected jurists" whom Hatch lampoons, four were nominated by Republican presidents, including conservative powerhouse Antonin Scalia, whom Hatch himself has lionized.

"I respect you. I have read your opinions," Hatch said of Scalia during his nomination in 1986. "You will add a great dimension to the Court. ... There is no question that this is a happy day for millions and millions of Americans."

Moreover, Hatch vigorously backed the Supreme Court's split decision in the disputed 2000 presidential election in which Bush won the White House over Al Gore:

"Some of the most important cases in history have been decided five-four, and it's important that we understand that you can't put in jeopardy, or in criticism, all of those five-four decisions that we all recognize as law today. ... So let's see what the court says, let's back the court whatever it does, whichever way it goes I intend to support it."

Dispute in Utah delegation

Utah's other senator, Republican Bob Bennett, opposes Hatch's amendment, going so far as to propose a statute that addresses flag burning without affecting the Constitution. Flag burning, Bennett says, reached its height during the protests of the Vietnam war more than three decades ago. It has since dwindled to what he considers a "nonproblem."

"The only time there's any significant amount of flag burning is when the flag amendment is introduced and people go out and burn flags in opposition to the amendment," he said.

Davis argues the same.

"It is a solution looking for a problem in the sense that there has not been a wave of flag burning incidents," Davis said. "It is not the case that this is somehow high on the public's agenda."

Hatch has heard that charge before.

"That is really what you'd call pushing the envelope the wrong way," he said. "If it's one, it's too many."

But the idea that flag burning is rare is wrong. Boy Scouts do it all the time out of respect to retire old and tattered flags.

"That's where (a law) becomes a restriction on freedom of speech, because it is the context you're looking at, not the actual act," Davis said.

"We're not about to ban the Boy Scouts from burning flags, but someone else doing exactly the same thing, burning pieces of cloth or nylon, will now be in jeopardy of breaking the law."

Amendment vs. statute

But Hatch argues laws were already in place, only to be struck down by the Supreme Court.

"Before this decision, 48 states and the District of Columbia had laws regulating the physical misuse of the American flag," Hatch said of Texas v. Johnson. "That decision in one fell swoop overturned all of those laws."

He also points out that the Supreme Court has been trumped by new amendments in the past. The Dred Scott case, which found a slave was a piece of property, was overturned by the 14th Amendment giving black men the same rights as white men.

The key to understanding the proposed amendment is simple, Hatch said. By itself, it doesn't ban anything. "Editorial writers write like we are banning flag desecration," he said. "The amendment's most important words are right up front -- 'The Congress shall have the power.' "

But while amendments have been written to overturn unpopular decisions of the Supreme Court, never before has one been written that directly amends one of the Bill of Rights, which have enjoyed a special place of honor in American life -- in this case, the First Amendment as defined by court decisions in a huge body of case law developed over two centuries.

While Hatch's amendment may not directly prohibit flag desecration, it does clear the way for laws to be written. And it is not clear how the courts would weigh those laws, backed by a flag amendment, against an existing body of First Amendment law.

For Bennett, changing the Constitution is simply is not warranted.

"The Constitution is our fundamental law and very, very hard to change," he said. "If we should make a mistake in a constitutional amendment, we're stuck with it. If we make a mistake in a piece of legislation, we can always change it."

Bennett's statute is sitting in the judiciary committee. He doesn't expect it to the see the Senate floor anytime soon and possibly anytime ever, even though he believes his efforts will be more effective and less trouble for the country than an amendment.

His proposed statute would ban flag desecration in three circumstances: damaging a flag to promote violence or breach the peace, when a person damages a flag belonging to the U.S. government or when a person damages a flag belonging to someone else. The circumstances may sound familiar because each is already covered by other statutes, which Bennett sees as a plus.

"Much of the activity that it covers is already illegal," he said. "That's why the Library of Congress tells us this bill would meet constitutional standards."

The second and third circumstances are easy. The first is the most difficult "what-if." Bennett cited as an example a speaker "trying to whip the crowd into a frenzy" at a public gathering. Unable to get the desired response, he pulls out an American flag and sets it on fire, all the while continuing with the anti-American rhetoric. The crowd suddenly becomes frenzied.

"By burning the flag, he does indeed create the riot that then starts as the people march on a federal building and start throwing stones at someone," he said.

Hatch is dismissive. The bill has few co-sponsors and in his judgment pales in effectiveness and popularity to his amendment, which has 59 co-sponsors of varying political beliefs. Such bills as Bennett's, he said, are just political cover for those who oppose an amendment but want to appease constituents.

Defining the flag

The amendment provides no definition of what constitutes a flag or what desecration entails.

Would it include reproductions on clothing, car magnets or posters. Does one need to take care when baking a Fourth of July cakefi

Hatch does not offer his own definition, instead saying that Congress would make as narrow a definition as possible and then allow the courts to more specifically interpret it as the law was enforced.

The U.S. Flag Code does provide guidelines for usage, including that "It should not be embroidered on such articles as cushions or handkerchiefs and the like," but it carries no national legal weight.

Such details don't help solve the larger questions that go to freedom of expression. "In terms of civil rights, it has been a steady progression towards greater civil rights, and this would certainly go in the opposite direction," Davis said, adding that the Bill of Rights was put into place to protect rights and limit governmental power. "Not all have been along those lines of expanding rights, but none have been in the opposite direction of reducing rights."

Paul McMasters of the Freedom Forum sounded an ominous note:

"There is no true national debate on defining flag and desecration, what a law spawned by the amendment would look like, what sort of acts would be the stimulus for a prosecutor to strike, how would the courts interpret such a law in terms of other amendments and previous decisions, and most importantly, how would such a law affect ordinary Americans going about their daily routines. You do not see these issues raised in the halls of Congress, in the endless talk shows, in the press, etc. on a regular or urgent basis.

"Thus we face the real prospect of enacting a truly monumental change in the Constitution in relative ignorance as a citizenry."

Voting and politics

Utah's Senate delegation is split down the middle. Hatch is talking optimistically; he believes he has the needed 67 votes but he's been here before.

"The only reason we lose is they pull some of these back who are not up for re-election," he said.

And if the amendment fails again, he'll just bring it up again in a year or two.

"Don't worry, we're going to pass this," he said. "It's just a matter of time. If we don't get it this year, we're going to come back with it."

Bennett is not thrilled with that possibility.

"It always has, and it always failed, and I expect that it will fail again," he said, hoping this could be the last time he votes on it. "I think we've defeated the flag amendment enough times that it probably ought to stay defeated."

Davis agreed with Bennett that the vote would probably be close but that the amendment would fall short again. Its greatest shot at passing is if enough senators vote to show their support but don't actually expect it to pass.

"It's quite possible that some of these people vote for this because they think it's going to lose," he said. "If they really thought it was going to win they might back off."

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AMENDMENT FACTS

Status: The amendment passed in the House of Representatives June 22, 2005, by a vote of 286-130. It has 59 cosponsors in the Senate.

What it needs: 67 votes in the Senate to pass. Then 38 states would need to ratify for the measure to be included in the Constitution.

Texas v. Johnson vote

MAJORITY

William Brennan -- Eisenhower appointee

Harry Blackmun -- Nixon appointee

Antonin Scalia -- Reagan appointee

Anthony Kennedy -- Reagan appointee

Thurgood Marshall -- Johnson appointee

DISSENTING

William Rehnquist -- Nixon appointee

Byron White -- Kennedy appointee

Sandra Day O'Connor -- Reagan appointee

John Paul Stevens -- Ford appointee

Read the Texas v. Johnson Supreme Court decision at www.heraldextra.com/flag.

This story appeared in The Daily Herald on page A1.