The proposed Constitutional amendment would give both Congress and the states the authority to prohibit "the physical desecration of the flag of the United States." That would create an enormous area for interpretation by the legislative bodies (Congress and state legislatures), by the enforcement authorities (US Department of Justice, state Attorneys-General, local District Attorneys, state and local police), and by the courts. Flag washing could very well be construed as illegal, at least in some jurisdictions. So could the wearing of flag patches, particularly if on the seat of the pants or on the crotch.

Remember that Abbie Hoffman was once arrested in Washington, DC, for wearing an American flag T-shirt he bought in a department store. Abbie's lawyer, Bill Kunstler, argued that this was a case of selective prosecution because Roy Rogers and Dale Evans had recently worn similar T-shirts in Washington, but were not busted. The judge, however, ruled that the contexts of wearing the American flag T-shirts were different. In other words, Roy and Dale wore theirs as part of a patriotic concert, so it was OK. Abbie wore his while protesting a subpeona to appear before a Congressional committee investigating the antiwar movement, so the very same act was illegal.