Saturday, June 14, 2014

Flag Day Flashback: Does the U.S. Flag Merit Special Protection?

Today is Flag Day, and thus an appropriate time to revisit an article I wrote almost 15 years ago about flag desecration.

The context that year was the approval in the U.S. House of Representatives of a proposed amendment to the Constitution that would have forbidden desecration of the American flag. This amendment would have carved out an exception to the First Amendment's guarantee of freedom of speech.

The amendment did not proceed any farther and debate and discussion of this issue has subsided. That does not mean it won't come up again, however.

My piece opposing the flag-burning amendment appeared in the Kansas City Star on Sunday, July 4, 1999.  It was apparently part of a pro-con debate on the op-ed page.  I have no idea who my opponent was that day, or what he said.

Does the flag merit special protection?
No: Flag-burning amendment desecrates the Constitution

On June 24, the House of Representatives approved an amendment to the Constitution saying: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” Now it is up to the Senate to send it to the states for ratification, which requires approval by three-quarters of the state legislatures.

U.S. flag in Washington, D.C.
As we observe Independence Day, it is worth pondering whether such an amendment to the Constitution is good or necessary.

The simplicity of this proposed amendment is beguiling but pernicious. Its essence is to restrict our precious First Amendment freedoms of speech and expression. As repulsive as it may be for citizens to desecrate Old Glory, they have the right to do so in order to express dramatically their views about government policy, American culture or current events. The First Amendment was not designed to protect only popular speech - if it were, it would serve no purpose whatsoever.

In a free society, standards of public morality can be measured only by whether physical coercion -- violence against persons or property -- occurs. There is no right not to be offended by words, actions or symbols. The best response to offensive speech is not punishment by government but more and better speech by concerned citizens.

The restrictive nature of this proposed amendment can be seen in this illustration. Suppose the United States - God forbid - were at war against a foreign adversary. Under the terms of the proposed amendment, it would be acceptable for U.S. citizens to desecrate the flag of our enemy, “Outer Freedonia,” but illegal for citizens (perhaps descendants of Freedonian immigrants) to express their opposition to the war by desecrating the U.S. flag. The imbalance could not be clearer.

U.S. flag in New York
The assertion by proponents of this amendment that flag desecration constitutes “fighting words” -- or speech unprotected by the First Amendment -- leads us down a slippery slope of redefining acceptable political expression to suit the majority's wishes.

Under this amendment, it would be permissible to desecrate a Confederate battle flag, even though that flag is held in high regard by some U.S. citizens. And what about other symbols of our country and its values, such as the Statue of Liberty? Will the First Amendment apply if Lady Liberty is portrayed, say, in an obscene but satirical cartoon?

Some proponents of the amendment, which in fact alters the First Amendment guarantee that ``Congress shall make no law respecting freedom of speech,'' arguing that flag burning and other forms of flag desecration are not speech but actions.

Where is the line between speech and action? The Boston Tea Party was indeed an action: Patriots dumped tons of tea into Boston Harbor while dressed as Native Americans. It was intended and understood to be a powerful symbolic protest against an unwanted tax imposed by the British parliament.

Did American soldiers fight for the flag or for something more?

“The veterans I know didn't fight for the flag, they fought for the things for which the flag stands,” notes Gene Cisewski, chairman of the Liberty Council, which is based in Washington. “That includes freedom of expression.”

Rick Sincere flanked by Soviet and U.S. flags, c. 1984
In his inimitable style, Rep. Barney Frank, a Massachusetts Democrat, made a similar argument during the House debate on the amendment: “We think the danger of discriminatory and arbitrary interference with freedom of expression is so great we'd rather put up with the occasional obnoxious jerk than to empower the government to decide what is acceptable and what isn't.”

Thomas Walls, executive director of the Republican Liberty Caucus, has written: “The United States does not suffer from rampant flag burnings. People have enough respect for the flag to discourage this sort of behavior.” Instead of adopting a flag-burning amendment, Walls asserted, “what needs to be protected from desecration are the principles of freedom our Founders sacrificed so much to establish.”

The flag-desecration amendment apes the laws of countries that do not respect individual freedom or personal responsibility, where criticism of government leaders is a criminal offense. As Cisewski puts it, “This is the same thing Hitler did to protect his swastika. Burning a Nazi flag was a capital offense.”

The U.S. Constitution is far more sacred than any woven symbol of it or our country. We must not allow the Constitution itself to be desecrated by this proposed amendment.

Richard E. Sincere is a member of the national committee of the Republican Liberty Caucus, the organized movement of libertarians within the GOP.

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