Apparently, Flag Burning is a really pressing problem these days

Eugene Volokh has the story of Missouri Rep. Jo Ann Emerson, who is apparently now pushing to revive the old, seemingly settled debate on flag dessicration. 

(Just as a quick primer for you non-law geeks: restrictions on flag-burning (other than, of course, those that would protect safety, etc.) were officially invalidated in the 1989 case of Texas v. Johnson, as a violation of the First Amendment.  Although this is usually thought of as a liberal verses conservative issue, the court split somewhat unusually, with Justice Stevens taking the position that flag burning was not protected, and Justice Scalia joining Brennan, Blackmun, Marshall, and Kennedy in the majority’s determination that it was protected speech.)

Representative Emerson’s proposed amendment is: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

I’d like to start by saying that I am a radical lover of all things American.  The thought of someone burning a flag sickens and disgusts me; I would be more than happy to go to any person who is burning a flag and exercise my free speech rights by telling them exactly what I think, and it would not be pretty.  But, that is the purpose, the goal, the workings of a free society- we can exchange ideas, even ones that we don’t like, and we all benefit from it. 

Now, certainly if the Constitution were amended, the ruling in Johnson would be null and void, but that does not mean that this proposal is without its problems. 

First, is this really a problem?  My general opinion of government’s role is that it should be basically limited to protecting citizens from having their rights infringed by others.  Obviously, that’s a broad umbrella, but I simply fail to understand who is being hurt, and who would be helped, by solving this “problem.”  If no other flag was burned in this country for the rest of my life, I can’t see how we would benefit. 

Second, Professor Volokh points out that the potential problems with a slippery slope and what he calls “censorship envy,” the idea that if one person or group gets to ban ideas/expressions/symbols that offend them, then others should get to do the same.  As the professor puts it, “The [First] Amendment is a truce: ‘I won’t try to suppress your ideas, if you don’t try to suppress mine.’  And the flag burning amendment risks shattering this truce.”

Third, this idea simply gives more and more support for the dangerous and foolhardy idea that society can ban expressions that it deems “offensive” or “hateful”  and still be free.  It cannot.  Speech and expression must be protected all the more so because they are offensive, and because they are hateful to some.  This is the only way that we can have an open exchange of ideas, and, if those ideas have merit, lead social change.  Those in power, regardless of who they are, will always have an interest in preventing  and suppressing speech that questions their ways, and giving them the opportunity to suggest or claim that the Constitution does not protect that speech is a great way to give them the power to do just that. 

Yes, the flag burning amendment seems to be just a small step in that direction, but it is nevertheless a much larger step than we should be willing to take.  Rep. Emerson stated, in her press release on this topic, that while the First Amendment protects free speech, it offers no protection for “hate speech.”   But, in reality, and misunderstood by many, First Amendment jurisprudence has made absolutely no distinction of that sort, the language of the Constitution gives no reason to believe that it should, and the Supreme Court has never given us reason to believe that it will.  Adding an amendment that builds in an exception to the First Amendment, based only on the offense that the expression brings to others, opens that door, and gives credence to those that, apparently like Rep. Emerson, believe that there are exceptions in the Constitution for actions that violate their feelings. 

If you don’t like flag burning, use your First Amendment rights to make a better case for why the person doing it is wrong.  Don’t use the inherent force of the government to stop ideas that you don’t like.


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