In 2003, in Virginia v. Black, the Supreme Court upheld by 5 to 4 a Virginia law banning cross-burning on public or private property. The Court reached this result by contending that such expression is a form of terror and intimidation. Just as cross-burning is a particularly henious form of speech, to many flag-burning is as well, but for different reasons. The flag is a uniquely American symbol, which is why it flies over government buildings, is carried into war, and drapes the coffins of those soldiers who died defending us. Sometimes these debates about priorities and so forth are too sterile. My grandfather, a Marine who fought at Iwo Jima and Guam, would have considered this amendment a priority. He saw fellow Marines lose their lives raising our flag over conquered territory. Stripping jurisdiction from the courts won’t work since the Supreme Court has ruled (also by 5 to 4) that flag-burning is protected speech. So, Congress is apparently responding to popular will. If it gets through Congress, it’s no small task to achieve ratification. Having said that, I believe it is likely to get the three-fourths of the states necessary to amend.
Also, prosecutorial discretion applies here as it would in all other legal cases. But if history is our guide, I don’t think we have to fear clogging our court system with flag-burning prosecutions. Moreover, elected representatives will determine the statutory language and, presumably, the actual scope of the law.