Wednesday, June 22, 2005

Symbolism over substance

From the why bother file: the House of Representatives passed a bill today that it has proposed as an amendment to the Constitution: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

This is a ridiculous case of symbolism over substance and Jerrold Nadler is right when he says: "If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents."

This veneration of the flag such that Congress would allow itself to prohibit expressive conduct regarding one THING is a terrible departure from the traditional interpretation of the First Amendment -- an interpretation that protects expressive conduct, such as burning a flag as a symbol of distaste for the US and its policies. The Constitution has been amended just 17 times since its enactment with the Bill of Rights (the first ten Amendments) attached in 1791. Enshrining in the Constitution an exception to the First Amendment to allow Congress to prevent flag-burning (or flag-desecration), which would be based solely on the expression of ideas antithetical to the members of Congress, is anathema to the purpose of both the First Amendment and the freedoms in the Constitution that the flag symbolizes.

The late Justice Brennan made this point quite succinctly 16 years ago when the Court upheld a Texas Court of Criminal Appeals ruling that threw out the conviction of Gregory Lee Johnson for flag desecration [Texas v. Johnson, 491 US 397]:

Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag - and it is that resilience that we reassert today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Brennan was right. I'm hoping this foolishness doesn't get past the Senate. If it does, hopefully 13 states will resist passing this Amendment.

No comments: