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The Flag Burning Amendment: The Bad Idea That Just Won’t Die

by @ 10:41 am on July 7, 2009. Filed under Freedom of Speech, Individual Liberty, Politics

When the Supreme Court decided back in 1989 that state and federal laws against flag burning and desecration were a violation of the First Amendment, Congress immediately turned around and passed a law which essentially pretended that the Supreme Court decision had never occurred. Not surprisingly, that law was almost immediately declared unconstitutional, and the mostly Republican proponents of laws against flag burning responded by unsuccessfully attempting to push through a Constitutional Amendment that would reverse the Court’s decision, most recently three years ago when the effort failed by one vote in the Senate.

Now, Eugene Volokh notes that the Amendment has been revived yet again:

Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won’t get enough votes. Yet even if it doesn’t, one longstanding misunderstanding about the First Amendment is likely to live on.

Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, “if you read the debate in 1790 — the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the Supreme Court screwed it up.” Or, as Judge Robert Bork argued in his book “Slouching Towards Gomorrah,” flag burning “is not speech,” and the court shouldn’t have held “that an amendment protecting only the freedom of ‘speech’ somehow protects conduct if it is ‘expressive.'”

Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood “freedom of speech, or of the press” to include symbolic expression as well as verbal expression.

The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions — such as libel, slander, sedition, obscenity and blasphemy — covered symbolic expression on the same terms as verbal expression.


[O]n this issue history and logic point in the same direction: From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. “Speech” and “press” in the First Amendment don’t just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.

I said pretty much the same thing when this first became an issue back in the 90’s in an essay I recently republished on Flag Day:

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

That should be all that needs to be said.

One Response to “The Flag Burning Amendment: The Bad Idea That Just Won’t Die”

  1. [...] The Flag Burning Amendment. Again with this anti-American nonsense? Restricting free speech is anti-American. The symbol of [...]

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