Tuesday, June 27, 2006

A Burning Issue

Who Would Protest Proposed Constitutional Ban On Flag Burning? Thomas Jefferson, For One

"Dissent is the greatest form of patriotism."
-Thomas Jefferson

From the folks who brought you the War In Iraq On False Pretenses, the Unlawful Detention of American Citizens Without Due Process, and the Policy Of "It's Okay To Torture. No, Really!," comes the latest foray into stomping on the freedoms and liberties 2500+ Americans are said to have died for in search of those elusive WMDs.

An Amendment to the Constitution of the United States (remember the Constitution of the United States? Members of Congress ought to sit down and read it some day), is just a single vote shy of going out to the states for ratification. [38 states would need to ratify the Amendment before it would become the highest law in the land.]

Obviously, the time has come to put an end to the rash of flag burnings in this country (there have been maybe 50 or so reported flag burnings in America over the past 3 years) -- and let's not discount the fact that the neocons need desperately to rally their base in time for the mid-term elections.

And so, the great debate begins -- divisively, as always -- between the First Amendment's freedom of speech and the proposed Amendment's attempt to quash expression of opinion -- including long-protected "symbolic speech" -- other than that held by the conservative right.

The Los Angeles Times hit the nail on the head in making the case for flag burning -- or at least the case against a Constitutional amendment banning such symbolic speech:

• It's a "solution" to a problem that doesn't exist. There has been no epidemic of flag-burning since the Supreme Court ruled in 1989 that destruction of Old Glory as a protest was symbolic speech protected by the 1st Amendment.
• The reintroduction of this amendment is part of the Republican Party's election-year attempt to rile up its social-conservative base, a "panderama" that already has produced a proposed constitutional amendment to ban same-sex marriage, which failed earlier this month.
• As Sen. Mitch McConnell (R-Ky.) pointed out, "The 1st Amendment has served us well for over 200 years. I don't think it needs to be altered." Placing a no-flag-burning asterisk next to the amendment's sweeping guarantee of free speech is a mischievous idea, and it could invite amendments to ban other sorts of speech Americans find offensive.

But the best argument against the flag amendment is the one some opponents are reluctant to make for fear of political fallout: It would make America less free.

Rare as flag-burning may be, a nation that allows citizens to denounce even its most sacred symbols is being true to what the Supreme Court in 1964 called the "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

As we approach the 230th celebration of our nation's independence, perhaps it is well worth considering whether it is more important to protect a banner symbolic of a people's staunch support of freedom, or to defend the very freedoms that those who, over the generations, carrying our flag into battle, have fought and died for. It was not for the flag, per se, that they gave that last full measure of devotion, but rather, for what they believed that flag stood for.

A Constitutional amendment to ban what the Supreme Court has already deemed to be symbolic speech? We wonder what Thomas Jefferson would think. Then again, why wonder?

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.”
-- Thomas Jefferson

The following is republished from pbs.org:


The United States holds itself up to be the nation where human freedom finds its purest expression. Thomas Jefferson expressed this ideal in the Declaration of Independence when he penned the words:

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness."

The Declaration of Independence led to more specific language in the Constitution that gave Americans the freedom of speech. Many citizens claim this freedom means they can express themselves in any manner they wish as long as their right of expression does not infringe on the rights of others to be left alone. Others believe that there are exceptions to this right of free speech. Such issues are worked out by Supreme Court, which uses its powers of constitutional interpretation and judicial review to outline the underpinnings of the Constitution and explain the law.

The guiding principles for the Supreme Court are found in the Bill of Rights, which comprise the first ten amendments to the Constitution. The First Amendment outlines personal liberties in the freedoms of religion, speech, press, assembly and the right to petition the government or the redress of grievances. Since the Bill of Rights was adopted, conflicts over what types of speech or expression are protected by the Constitution have led the Supreme Court to provide some additional clarification. The definition of speech has come to include not only spoken words, but also symbolic speech as well as the two forms of speech together (known by the court as "speech plus"). This definition sometimes requires citizens to tolerate unpopular speech for the sake of preserving the spirit of the freedom itself.

In recent times, protesters have burned the American flag to express outrage at a political idea such as war, or even to challenge any objections to the burning of flags. Such behavior has outraged many Americans who feel that the flag is a symbol of the United States that should be protected from harm, and that burning flags should not be protected under the First Amendment.

The Flag Protection Act of 1989 made a criminal of any citizen who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except in relation to the disposal of a "worn or soiled" flag. In a number of cases that came to the Federal district court, the courts dismissed the charges under the belief that the Act violated the free speech clause of the First Amendment. The government appealed the United States v. Eichman case to the Supreme Court in 1990.

The Issue Before the Court:

Is the action of burning an American flag within the context of a public protest constitute "expressive conduct," an idea that falls under the freedom of speech protection of the First Amendment?

Supreme Court Ruling: The burning of the American flag is considered "symbolic speech" and is protected under the First Amendment.

Majority Opinion Summary and Excerpt

The Supreme Court had ruled in 1989 in the case of Texas v. Johnson that the First Amendment rights of citizens to engage in free speech, even if that speech is "offensive," outweighs the government's interest in protecting the American flag as a symbol of American unity and prevents the breach of the peace which was argued to be the result of such an action. The action of flag burning, as repugnant as it may be to many citizens, was determined by the Supreme Court and Texas Court of Criminal Appeals, was defined as an example of "symbolic speech."

In the Texas case, the court voted in a 6-2 decision to affirm the Criminal Appeal's court decision to bring flag burning under the protection of the First Amendment. In the Eichman case, the Court's 5-4 ruling reiterated its belief that flag burning falls within the same class of actions as "virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures," which are "deeply offensive" to the average American, but that the Government may not infringe the right to express an idea just because society has concluded that said idea is offensive.

The convictions leading to the Eichman case were overturned not only because of the expressive nature of the action on which the convictions were based, but also due to the inherent unconstitutionality of the federal Flag Protection Act of 1989.

For the majority opinion, Justice Brennan wrote the following excerpts:

"Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related `to the suppression of free expression...

Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction.

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments are Affirmed.

The idea that there is no right in American society that is pure and unlimited is an established concept in American jurisprudence. The rights of the individual are always being weighed against the interests of the society as a whole as represented by the Government. The limits of free speech was the focus of the dissenting opinion of the court in this case."

Dissenting Opinion Excerpt

Justice Stevens, along with the Chief Justice, Justice White and O'Connor wrote:

"...It is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition."

Justice Stevens concluded in his opinion that by destroying the symbol of freedom, the individual communicates a willingness to destroy those freedoms themselves:

"By burning the embodiment of America's collective commitment to freedom and equality, the flag burner charges that the majority has forsaken that commitment -- that continued respect for the flag is nothing more than hypocrisy. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor."
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For more information on flag burning and the First Amendment, visit the First Amendment Center.

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