When a disabled veteran from Indiana complained to State Sen. Vaneta Becker, R-Evansville, that a performance of the “Star-Spangled Banner” was offensive, Becker responded with proposed legislation.
The proposed bill aims to set “performance standards” to performances of the National Anthem in Indiana’s public schools and universities.
Any performer who does not comply could face a $25 fine.
“Parodies, while some are intended as harmless jokes, have the potential to end up being very disrespectful,” Becker said in a prepared statement. “Singing our national anthem is often a sign of gratitude to those who have served our country, a tradition I think should be preserved.”
According to the bill, which would also cover private schools receiving state or local scholarship funds, performers of the National Anthem would be required to sign a contract agreeing to perform the original composition of the song without drastic alterations.
This applies not only to the lyrics, but the tune as well.
However, what would or would not meet these performance standards has yet
to be identified.
This task, the bill says, would be determined by the State Department of Education and the Commission for Higher Education.
But Eugene O’Brien, executive associate dean at the Jacobs School of Music, said he is unaware of an “official” version of the “Star-Spangled Banner.”
“There are lots of different versions out there, and the way the music was written and performed in the 19th century — before it was the National Anthem — is quite different from the way we hear it these days,” O’Brien said.
The lyrics of the “Star-Spangled Banner” are a poem written in 1814 by Francis Scott Key, an American lawyer and amateur poet. The tune, however, is less original. The lyrics of the “Star-Spangled Banner” were set to British drinking song “The Anacreontic Song.”
Indiana is not the first state to mandate guidelines for the “Star-Spangled Banner.” In fact, even federal law has established guidelines.
According to federal law, those in uniform “should give the military salute at the first note of the anthem and maintain that position until the last note.”
Everybody else who is present for the performance of the anthem “should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress.”
O’Brien mentioned a law in Massachusetts prohibiting “rearranging the National Anthem in whole or in part.”
O’Brien said composer Igor Stranvinsky, whom O’Brien considers one of the greatest composers of the 20th century, was arrested in Boston for his arrangement of the National Anthem in the 1940s.
“Where do you draw the line?” O’Brien said. “And who makes that decision?”
O’Brien said students at the Jacobs School of Music perform the National Anthem without changes to its original rendition when asked to perform at an event.
But in January 2011, a Bloomington High School North student took the plunge at a basketball game. Shai Warfield-Cross’s version contained the original lyrics but a slightly different tune.
After observers complained to the school, Warfield-Cross was told she could not sing the song that way again because it was disrespectful to the people who died for the United States.
IU Law Professor Daniel Conkle said Becker’s bill could be unconstitutional.
Although Conkle prefers traditional renditions of the “Star-Spangled Banner,” he identified several legal pitfalls within the bill.
“I think it is misguided,” Conkle said. “I think the way the law goes about attempting to deal with this is unduly intrusive and is plagued with all kinds of vagueness issues if and when they do try to come up with the standards that they might have in mind.”
Conkle said the legislature could insist that schools and universities use selection criteria that are consistent with maintaining the traditional rendition of the National Anthem.
“In terms of standards, or the ideas of standards,” Conkle said, “I don’t think that is necessarily unconstitutional in this particular setting of school-sponsored event.”
But for Conkle, the bill becomes problematic regarding the idea of imposing fines.
“The idea of imposing fines on people who don’t comply with the standards looks to me like a type of punishment for First Amendment activity that would be problematic,” Conkle said. “It is not entirely clear to me, but I think the fine idea of this makes it, let’s just say, constitutionally problematic, if not obviously unconstitutional.”
Aside from potential First Amendment issues, he said the bill also contains numerous implementation problems.
Although the bill would require schools to keep audio recordings of all performances of the National Anthem for two years and develop procedures to deal with complaints if a musician is accused of straying from the performance standards, Conkle said it would still be difficult to enforce.
“How in the world would you know whether someone had violated that standard? So you’ve got incredible sorts of issues of vagueness,” Conkle said. “I think this proposed law is a very bad idea.”