Former Nebraska Senator Bob Kerrey has an Op-Ed in today’s Washington Post about the latest attempt to amend the Constitution to ban flag burning:
With campaigns at full tilt and the Fourth of July just around the corner, the Senate’s new priority is to debate and vote on yet another resolution to amend our remarkable Constitution. This time it’s an amendment that would allow Congress to prohibit a form of protest that a large majority of Americans do not like: the burning or desecration of the American flag. Since 1989, when the Supreme Court decided unanimously and correctly that these rare, unpleasant demonstrations are expressions of speech and therefore protected by the First Amendment, there have been many such attempts. Fortunately, all have failed.
Unfortunately, enthusiasm for this amendment appears to have grown even as flag-burning incidents have vanished as a means of political protest. The last time I saw an image of the U.S. flag being desecrated in this way was nearly 20 years ago, when the court issued its decision. Thus this amendment — never appropriate in the oldest democracy on earth — has become even less necessary. But necessity is not always the mother of legislation.
Its also been nearly 20 years since the Supreme Court decided Texas v. Johnson, the case which struck down laws against flag burning. After an ill-advised attempt by Congress to pass a law that effectively reversed the decision, opponents tried the amendment route. The momentum for a Constitutional Amendment to reverse the decision has ebbed and waned over the years, and now appears to on the uptick again.
WASHINGTON ? The Senate is one vote away from passing a constitutional amendment that would ban desecration of the U.S. flag, the closest that amendment supporters have been to passage.
The American Legion, which supports the amendment, and the American Civil Liberties Union, which opposes it, both say there are 66 votes to pass it.
Whether advocates can find the 67th vote to send the flag amendment to the states for ratification remains unclear. A Senate vote is set for the week of June 26.
After that, all that would be in the way of a 28th Amendment would be the votes of 38 states. As Kerrey points out, the cost to freedom of speech that such an amendment would impose far outweigh whatever benefits would might accrue from banning the act of flag burning:
If our First Amendment is altered to permit laws to be passed prohibiting flag desecration, would we like to see our police powers used to arrest an angry mother who burns a flag? Or a brother in arms whose disillusionment leads him to defile this symbol of the nation? I hope the answer is no. I hope we are strong enough to tolerate such rare and wrenching moments. I hope our desire for calm and quiet does not make it a crime for any to demonstrate in such a fashion. In truth, if I know anything about the spirit of our compatriots, some Americans might even choose to burn their flag in protest of such a law.
The recent Supreme Court decision overturning state and Federal laws that made it a crime to burn or desecrate the American flag has created a storm of controversy. By now, the arguments against the decision have become familiar: by making it legal for the flag to be burnt or desecrated, it is argued, we are denigrating the banner under which Americans have fought and died for over 200 years. Furthermore, it is held, people who burn or desecrate the flag are attacking America as a nation and do not deserve the protection of the Constitution of the nation they are implicitly rejecting.
However, the reaction to the decision has focused more on emotional appeals than rational analyses of the issues at hand. We must not allow personal esthetic or emotional attitudes about flag burning to obscure the essential question: which should we be protecting, the flag of the United States or the principles of individual liberty, responsibility, and self-government upon which the United States was founded and which the flag is supposed to symbolize?
In adopting the position of the opponents of the Supreme Court decision, one would have to accept the seemingly contradictory idea that in order to protect the symbol of a nation founded on individual liberty, one must restrict individual liberty. Taking this position also leads one into dangerous territory in relation to other areas of action or thought and the effect that they might have on the rest of society. After all, if flag burning can be banned because a majority of the public are offended by an attack on what they believe to be a sacred symbol, then why not extend the ban into other areas where an individual?s actions might be offensive to others? If we ban flag burning, then why not ban movies or books that depict in an offensive way religious figures or other subjects considered to be sacred? Why not ban magazines, films, or groups that offend the sensibilities of women, blacks, Jews, or any other minority group?
A person who opposes flag burning may argue that he would not extend his logic as far as that in the above examples. But the reasoning behind these examples and that behind flag burning are of the same majoritarian parentage: the belief that if a sufficiently large number of people find an activity offensive then they can use the coercive power of the state to regulate or, preferably, to ban that activity.
The problem, then, with taking the position that the flag should be protected even at the expense of individual liberty is not that flag burning or any other activity deemed to be offensive has some sort of redeeming value, or that symbols such as the flag are unimportant, but that in banning these activities, one is accepting a principle that is ultimately destructive of a free society. By accepting this principle, we are allowing for the creation of a society wherein appropriate expressions of patriotism, appropriate forms of artistic expression, and appropriate activities are decided by a process of majority rule that, rather than minimizing conflict in society, heightens it to a dangerous degree.
A preferable position would be to assert that while the flag is an important American symbol, it is more important that we protect principles such as liberty, private property, freedom of speech, and freedom of thought that have been at the very core of the American system, even if this means that we must tolerate activities that offend us. In taking this position, one would not have to assert that these activities have any redeeming value or recommend that others engage in them, but simply that toleration of such acts is the price that must be paid for living in a free society. Most important, it would not be left up to the state or an ever-shifting majority to decide what is offensive and whether something that is deemed offensive should be banned. This would minimize the conflicts over such sensitive areas as religious belief and artistic expression.
It is undeniable that to most Americans, including those who value liberty, flag burning is offensive. We do not like to see someone set fire to a banner that is a symbol of freedom, especially when that person rejects the freedom the flag symbolizes. However, we must not allow our love for the flag-as-symbol to blind us to the reality that a law banning flag burning or desecration would be as much a restriction on individual liberty as would be a law banning publication of a book that seems to denigrate a religion. Neither must we forget that the moment one concedes that certain activities should be banned simply because they offend other people, one is allowing for the creation of an environment in which no one is safe to do what he might, lest he offend someone and bring down on him the heavy hand of the government.
The answer to the question, ?Which should we protect, freedom or the flag?? is that we should protect freedom above all else. In denying an individual the right to burn his own flag in protest or to engage in any number of offensive but otherwise harmless activities, we are denigrating the principles that the flag is supposed to symbolize and are doing a disservice to the patriots who established this nation not to protect a flag but to enshrine freedom
In some ways, its hard to believe that, 16 years later, we’re still having the same debate.