Magazine article The Nation

Old Glory (Trademark)

Magazine article The Nation

Old Glory (Trademark)

Article excerpt

"The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States."

The flag amendment has sailed through the House and through the Senate Judiciary Committee, and it's assumed it will pass the full Senate. Why does the most ludicrous proposed constitutional amendment of the century seem like a foregone conclusion?

Because the opposition is urunspired. Civil libertarians keep invoking the First Amendment--as if we're so smart we could prove that a constitutional amendment is unconstitutional. If we need to cite scriptural authority, much better to quote the First and Second Commandments, which forbid idol worship and graven images and cannot be squared with the essentially religious concept of flag "desecration."

For their part, conservative advocates of the amendment, otherwise outraged by government "takings" of private property, do not realize they are demanding the nationalization of millions of pieces of intellectual property. Unlike the Washington Monument, the flag is not a single object existing in one place that can be protected from defacement. It is a schematic color pattern, universally reproducible in cloth, paper, cake icing, beach towel, video or any other medium.

The flag amendment turns this public-domain design into the exclusive trademark of the state, available only for authorized use under a government license. Despite its religious connotation, "desecration" in a legal sense will mean "flag infringement"--or, more precisely, "unauthorized use of any substance in which the image of the FLAG[TM], appears."

Commercial advertising that uses the flag will be the first kind of desecration to go. Two dormant federal flag-respect statutes already ban flag use in ads. These laws have gone unenforced only because of recent First Amendment doctrine that will be made obsolete by the Twenty-eighth Amendment. …

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