Author: Chip Bennett

Yesterday, the US House of Representatives passed by 286-130 a Constitutional Amendment authorizing Congress to ban the desecration of the American Flag.

Several of my Conservative brethren would brand me as an extremist for supporting the measure. The arguments generally include:

• Flag-burning is an exercise of freedom of speech, which is a Constitutionally protected right,
• Expression is the same as speech, in terms of Constitutional limitations on abridgement of rights,
• Banning flag-burning will lead to banning the exercise of speech and expression in legitimate forms of protest,
• Giving Congress power to ban flag burning violates the entire embodiment of rights enumerated in the Bill of Rights.

These arguments – which I will address shortly – miss the point entirely. American Flag burning has no place in civilized society. Granted, anti-Christian, anti-Semite, America- and Israel-hating Muslim fascists take great joy in burning the flags of both the USA and Israel; but to that point I respond: 1) see my previous statement, and 2) perhaps those who would burn the American flag here in the US have much in common with those fanatics.

It is completely illogical to exercise one’s freedom of expression by protesting the symbol of the guarantee of that very right of expression. The United States of America is the beacon of Democracy and the epitome of civilized society. Political dissent has been defended passionately since Bostonians turned the Harbor into the world’s largest cup of tea. Political (especially, minority – since protecting majority rights is not really an issue) dissent is one of the roots of the limitation on Congress to abridge the freedom of the people – freedom of religion, speech, press, assembly, keeping and bearing arms, property, etc. These freedoms all embody myriad means of expressing dissent, including private and public speaking, publishing (dead-tree and internet), artistic expression, protest assemblies, or expatriating oneself. Burning the American Flag is not among their number.

That’s not to say that flag-burning never has inherent purpose. Burning a flag that symbolizes a tyrannical government that suppresses basic human freedoms is a perfectly legitimate and germane protest of the tyranny and suppression embodied by the flag. So, an Iranian who protests his government by burning the flag of Iran expresses a perfectly consistent statement. Only someone insane, or who hates America (or both) would attempt a serious correlation between an oppressed subject of a tyrannical regime burning the flag symbolizing tyranny to an American living in the most free society in the history of mankind burning the flag symbolizing the passionate and self-sacrificial defense of freedom.

A democratic society provides a means for the governed to hold government accountable. Representatives are subject to regular elections. Elected officials face recall or impeachment when warranted. Executive branches at nearly all levels of government are subject to term limitation. Legitimate means of protest against elected officials include watch-dog activities holding officials accountable to what they do and say while in office, formation of Political Action Committees and lobbyist groups, active campaigning against an incumbent, active campaigning for a challenger, or running for office oneself. Burning the American Flag contributes nothing to any of these endeavors.

Apparently, I am not alone in my assertion that burning the American Flag has no place in a civilized America. From the same article:

The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.

Again, what we really have is a Constitutional-amendment band-aid to reassert the right of the legislative branches of our Federal and State governments to legislate according to the will of the majority, against judiciary fiat – in this case, SCOTUS trumped the legally and legitimately expressed will of the citizens of 48 States, and and Federal statute. I will concede that I would much prefer that the wording of the amendment guarantee the right of the States to govern themselves with respect to the prohibition of the physical desecration of the American flag; however, even the wording as rendered would restore that right to the States, whether or not the US Congress ever chooses to pass legislation prohibiting physical desecration of the American flag.

To further illustrate the will of the people, consider this collection of (ten-year old) polls concerning support for or against flag burning as free speech.

To be honest, I’m extremely tired of attempts to justify flag burning as protected free speech. Just for reference, here’s the wording of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

First point: the reference to freedom of expression, as written in the First Amendment, directly correlates to religion. Note the use and location of the comma, semi-colon, and the word “thereof”, which corresponds “expression” to “religion”. Thus, while I am no Constitutional or legal scholar, I do understand basic rules of grammar and can say that arguments that the First Amendment protects a carte blanche freedom of expression are baseless.

Next, I would like to reiterate the definition of “speech“:

speech
n.

1. 1. The faculty or act of speaking.
   2. The faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words.
2. Something spoken; an utterance.
3. Vocal communication; conversation.
4. A talk or public address: “The best impromptu speeches are the ones written well in advance” (Ruth Gordon).
5. A printed copy of such an address.
6. One’s habitual manner or style of speaking.
7. The language or dialect of a nation or region: American speech.
8. The sounding of a musical instrument.
9. The study of oral communication, speech sounds, and vocal physiology.
10. Archaic. Rumor.

Of all the definitions of speech, one common thread is clear: speech involves or originates from oral communication. Speech can be concurrent with Flag Burning, but the act of flag burning itself is not inherently “speech”.

As for the right of government to abridge the freedoms embodied in the Bill of Rights, the prohibition of flag desecration would certainly not set a new precedent. A civil society should, can, and does impose reasonable limits on the exercise of personal freedoms. For instance, the Supreme Court has upheld that expressing intimidation via cross burning is not Constitutionally protected free speech. (And here’s a liberal’s attempt to compare and contrast cross and flag burning.) Further, speech that presents a “clear and present danger” (e.g. shouting “Fire” in a crowded theater:

As I pointed out, the excuse normally given by the government for oppression is that of necessity. This was precisely the reason given in 1919 when the Supreme Court ruled in Schenck v. U.S. that speech could be forbidden if it presents a “clear and present danger.” It was this same ruling that put the “shouting fire in a theater” test into the public conception of the parameters of free speech. Justice Oliver Wendell Holmes wrote:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206 S., 25 Sup. Ct. 3. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 439, 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Although subsequent decisions went on to clarify that a “clear and present danger” was limited to violent actions and not political advocacy, that was not before this case was used as justification to imprison political dissidents. In any case, the idea was planted in the people’s mind that speech could be limited by the government, as long as the reason was good enough.

Yet again, speech intended to incite a riot is not Constitutionally protected free speech. Obscenity, child pornography, libel, perjury, contempt of court, and false advertising – these are all also not Constitutionally protected free speech. What about freedom of expression of religion? Even under the guise of religious freedom, polygamy, pedophilia, bestiality, public nudity and obscenity, and any other of a number of forms of “expression” (including oppression of women and children and beheading of “infidels”) are not Constitutionally protected.

The reason that American Flag desecration should be prohibited is not because it offers no inherent value or benefit to discussion of issues or political dissent in civilized society; it should be prohibited because it is an act of political dissent so base that it inherently incites violence and hatred, and aids, abets, and offers comfort to the enemies of the United States in times of war. Burning the flag is an act that illicits passion and emotion and stifles reasoning; thus flag burning is actually detrimental to civilized discourse.

The American Flag symbolizes everything that is America – the good and the bad. More importantly, though, the flag represents a system of governance of, by, and for the people – a system of checks and balances, and a system of self-correction. The American Flag symbolizes a system in which the majority must recognize and protect the rights of the minority, a system in which mistakes and grevious wrong-doing alike are exposed, rooted out, and atoned for from within. The Flag represents a system that provides the mean to be changed; a political dissident can change the system if gathers enough support – and that change comes peacefully, through the process defined by the system.

Thus, to burn the flag is to protest the most advanced, the most peaceful, the most civilized, the most humane, and the most successful means of changing the system of government by the governed in all of history. To burn the flag is effectively to end any discussion or debate that would otherwise come out of civilized political dissent. To burn the flag is to protest the sacrifice of thousands of American men and women who have fought – and died – to defend the freedoms symbolized by the Flag.

Having said all that, I don’t really expect the measure to pass the Senate. It is doubtful that it has the 2/3 majority support:

A day after a proposed constitutional amendment to outlaw flag-burning cleared the House, an informal survey by the Associated Press suggested the measure lacks enough Senate votes to pass.

The 286-130 outcome in the House was never in doubt, and amendment supporters expressed optimism that a Republican gain of four seats in last November’s election could produce the two-thirds approval needed in the Senate, as well, after four failed attempts since 1989.

But an AP survey yesterday found 35 senators on record as opposing the amendment — one more than the number needed to defeat it, barring a change in position.

Apparently, the American Flag Blog agrees, in reaction to an opinion piece by one Sandi Webb.

I will probably re-visit the issue later, mainly to take on more of the arguments against prohibiting flag burning.