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.

Pledge of Allegiance, Revisited

Today the Ninth Circuit Court of Appeals in San Francisco ruled that the use of the prepositional phrase "under God" in the Pledge of Allegiance is constitutional.

According to a report in the Christian Science Monitor by Michael B. Farrell,

In two separate cases, Michael Newdow, who previously challenged the Pledge in a case that reached the US Supreme Court in 2004, attempted to further his long-running campaign to strip references to God from the public domain.

In Mr. Newdow’s latest case against “under God” in the Pledge, the Ninth US Circuit Court of Appeals panel ruled, in a 2-to-1 decision, that the schoolroom routine for millions of children is not a violation of the Constitution, but a historical reflection of the Founding Fathers’ beliefs that “serves to unite our vast nation.”

“Not every mention of God or religion by our government or at the government’s direction is a violation of the Establishment Clause,” wrote Judge Carlos Bea for the majority in the opinion that was issued Thursday.

By sheer coincidence, the ruling came on the 67th anniversary of the oral arguments before the U.S. Supreme Court in the case of West Virginia State Board of Education v. Barnette. In that case, the Court eventually ruled that state authorities could not compel students (or anyone else) to salute the flag or recite the Pledge of Allegiance.

In his majority opinion in that case, Justice Robert Jackson noted

that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here, the power of compulsion [p634] is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.

Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. [n14] If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence, validity of the asserted power to force an American citizen publicly to profess any statement of belief, or to engage in any ceremony of assent to one, presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views [p635] hold such a compulsory rite to infringe constitutional liberty of the individual. [n15] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.

In a now-famous passage, Justice Jackson wrote at the conclusion of his opinion:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

(Thanks to Professor John Q. Barrett of the St. John's University law school for the reminder that the oral arguments in the Barnette case took place on March 11, 1943. Barrett is the originator and editor of the Jackson List, an archive of material about Justice Robert H. Jackson.)

In addition to the coincidental anniversary, the 9th Circuit ruling comes on the heels of a minor controversy in Maryland, in which a schoolgirl was reprimanded by her teacher for refusing to stand during the Pledge, in clear violation of the child's constitutional rights.

The Washington Post reported on February 25 that the Montgomery County school system has apologized to the girl and her family, and that the teacher has been reprimanded, in turn:

In addition to an apology, the mother of the girl was told that the teacher, who has not been identified by either side, and school administrators plan to lead the girl's class in a discussion about the incident and their constitutional rights, [attorney Ajmel] Quereshi said.

"It's not an issue of just the pledge. It's a larger issue about their First Amendment rights," Quereshi said. "It's an important lesson that should stay with them."

The Supreme Court ruled in 1943 that students cannot be forced to salute the flag. Maryland law explicitly allows any student or teacher to be excused from participating in the pledge, according to the ACLU.

The Montgomery school system's student handbook contains a section about "Patriotic Exercises" that reads: "You cannot be required to say a pledge, sing an anthem, or take part in patriotic exercises. No one will be permitted to intentionally embarrass you if you choose not to participate."

Eight years ago, when Michael Newdow's first lawsuit was decided by the Ninth Circuit (in his favor), I wrote an article about the Pledge of Allegiance that made other arguments about why Americans should be wary about reciting it so lackadaisically. It was twinned with an article by Richard J. Santos of the American Legion under the headline, "Court's Decision on Pledge Must Not Stand." The two articles appeared in The Metro Herald (Alexandria, Virginia) on July 5, 2002.  Here is my article as it appeared that day:

PLEDGE RULING:
RIGHT, FOR THE WRONG REASONS

Richard Sincere

Metro Herald Charlottesville Bureau Chief

(Charlottesville, VA, June 27, 2002)—The American Heritage Dictionary defines “allegiance” as “the obligations of a vassal to a lord.” Similarly, Black’s Law Dictionary defines it “obligation of fidelity and obedience to government in consideration for protection that government gives.”

In a widely-noted ruling on June 26, the Ninth Circuit Court of Appeals ruled that the recitation of the Pledge of Allegiance in government schools is unconstitutional because the Pledge contains the words “under God.” The court said this violates the Establishment Clause of the First Amendment (“Congress shall make no law respecting the establishment of religion …”)

Writing for a three-judge panel of the court, Judge Alfred T. Goodwin argued: “A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”

Goodwin added: “Although students cannot be forced to participate in recitation of the pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current orm of the pledge.”

Needless to say, conservative groups and their spokesmen pounced on the appeals court ruling with speed and fervor.

Steve Schmidt, communications director for the National Republican Congressional Committee (NRCC), sent out a “talking points” memorandum that suggested to Republican activists that they should “call on every school board to ignore this decision.” David Keene, chairman of the American Conservative Union (ACU), “called for the impeachment of the two judges who came up with such a ridiculous opinion regarding the separation of church and state,” according to an ACU news release issued within hours of the court’s decision.

These conservatives might not be so eager to complain if they knew the history of the Pledge of Allegiance and its intended purpose. While most of us today view it as benign or sentimentally patriotic, a look at its origins illustrates the sinister -- one could say “un-American” -- features underlying the Pledge.

Writing in the May 2001 issue of the journal Ideas on Liberty, published by the Foundation for Economic Education -- one of the oldest pro-freedom think tanks in the United States -- author and activist Jim Peron reports that the author of the Pledge of Allegiance was Francis Bellamy, a Baptist minister and socialist agitator who was the cousin of Edward Bellamy, author of the socialist utopian novel, Looking Backward (1888).

Francis Bellamy composed the Pledge for a magazine called The Youth’s Companion, which first published it on September 8, 1892, and promoted it vigorously. As Peron relates the story, “Bellamy, like his cousin, wanted to use government schools to help promote a socialist agenda. He felt that one way of encouraging this agenda would be the teaching of state loyalty. To this end he wrote a pledge, which students across the country were asked to take. With a few minor changes this pledge is what is now called the Pledge of Allegiance.”

Peron goes on to note that “Bellamy attempted to accomplish several goals with his Pledge of Allegiance. He saw it as a means of inculcating support for a centralized national government over the federalist system of the Founding Fathers.” Moreover, Peron writes, Bellamy “originally toyed with the idea of making the Pledge more openly socialistic, but decided that if he did so it would never be accepted.”

Why not? Because the American republic was founded on constitutional principles that are antithetical to socialism and its parallel, feudalism, in which the citizen is a mere vassal to a superior lord. The Pledge of Allegiance stands on its head the American commitment to universal but individual rights of “life, liberty, and the pursuit of happiness” (as Thomas Jefferson put it in the Declaration of Independence). In its place it puts fealty to the will of the state and the subjugation of the individual to an amorphous “society.”

Whether reciting the Pledge of Allegiance in government schools is unconstitutional or not will be left to another court -- perhaps the U.S. Supreme Court. But Republicans and other conservatives should not be too quick to condemn the ruling without first thinking about the implications of the history and the text of the Pledge itself. If they do, they might realize that they are supporting something that undermines all they hold dear about America.

As a matter of fact, it may do well for all of us to reflect on the true meaning of the Pledge of Allegiance this Independence Day weekend. The unsettling conclusions we draw should lead to deeper wisdom and a better appreciation of individual liberty as promised by the Constitution.

Richard Sincere is president of the Arlington Research Group and author of two books on foreign policy, The Politics of Sentiment and Sowing the Seeds of Free Enterprise.

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For Flag Day

Today is Flag Day, which used to be celebrated as a national holiday commemorating the adoption of the design of the U.S. flag by the Continental Congress in 1777.

In honor of the occasion, I present this excerpt from the majority opinion in Texas v. Johnson, the landmark 1989 case decided by the U.S. Supreme Court. The majority included Justices William Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. (Scalia and Kennedy, of course, still sit on the court; the others are deceased.)

Delivering the opinion of the court, Justice Brennan wrote (in part):

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. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U.S., at 55 -56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 , 72 (1983); Carey v. Brown, 447 U.S. 455, 462 -463 (1980); FCC v. Pacifica Foundation, 438 U.S., at 745 -746; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 -65, 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 16 -17 (1976); Grayned v. Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); O'Brien, 391 U.S., at 382 ; Brown v. Louisiana, 383 U.S., at 142 -143; Stromberg v. California, 283 U.S., at 368 -369.

We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U.S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had "failed to show the respect for our national symbol which may properly be demanded of every citizen," we concluded that "the constitutionally guaranteed `freedom to be intellectually . . . diverse or even contrary,' and the `right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous." Id., at 593, quoting Barnette, 319 U.S., at 642 . Nor may the government, we have held, compel conduct that would evince respect for the flag. "To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." Id., at 634. [491 U.S. 397, 415]

In holding in Barnette that the Constitution did not leave this course open to the government, Justice Jackson described one of our society's defining principles in words deserving of their frequent repetition: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id., at 642. In Spence, we held that the same interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse statute for the taping of a peace sign to an American flag. "Given the protected character of [Spence's] expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts," we held, "the conviction must be invalidated." 418 U.S., at 415 . See also Goguen, supra, at 588 (WHITE, J., concurring in judgment) (to convict person who had sewn a flag onto the seat of his pants for "contemptuous" treatment of the flag would be "[t]o convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas unacceptable to the controlling majority in the legislature").

In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. 10 To bring its argument outside our [491 U.S. 397, 416] precedents, Texas attempts to convince us that even if its interest in preserving the flag's symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. See supra, at 402-403. In addition, both Barnette and Spence involved expressive conduct, not only verbal communication, and both found that conduct protected.

Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. 11 If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role - as where, for example, a person ceremoniously burns a dirty flag - we would be saying that when it comes to impairing the flag's physical integrity, the flag itself may be used as [491 U.S. 397, 417] a symbol - as a substitute for the written or spoken word or a "short cut from mind to mind" - only in one direction. We would be permitting a State to "prescribe what shall be orthodox" by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity.

We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. Indeed, in Schacht v. United States, we invalidated a federal statute permitting an actor portraying a member of one of our Armed Forces to "`wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.'" 398 U.S., at 60 , quoting 10 U.S.C. 772(f). This proviso, we held, "which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment." Id., at 63.

We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. See Carey v. Brown, 447 U.S., at 466 -467.

There is, moreover, no indication - either in the text of the Constitution or in our cases interpreting it - that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons [491 U.S. 397, 418] who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole - such as the principle that discrimination on the basis of race is odious and destructive - will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.

It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to "preserv[e] the national flag as an unalloyed symbol of our country." Spence, 418 U.S., at 412 . We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks "any state interest whatsoever" in regulating the manner in which the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see 36 U.S.C. 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations. To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest. "National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement." Barnette, 319 U.S., at 640 .

We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown [491 U.S. 397, 419] man will change our Nation's attitude towards its flag. See Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the burning of an American flag "`is an act having a high likelihood to cause a breach of the peace,'" Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD Ill. 1971) (citation omitted), and its statute's implicit assumption that physical mistreatment of the flag will lead to "serious offense," tend to confirm that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag had been burned.

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. 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 [491 U.S. 397, 420] 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.

I think it is important to include part of Justice Kennedy's concurring opinion, as well, because it expresses (especially in the first few paragraphs) some of the delicacy of addressing this issue -- the question of flag desecration -- when the Court knows how many Americans of goodwill find the practice repugnant, even when the law insists that such an expressive act is protected by the U.S. Constitution.

Justice Kennedy -- who also wrote the majority opinion in this week's equally historic cases of Boumediene v. Bush and Al Odah v. Bush, which deal with the rights of prisoners held at the U.S. base in Guantanamo Bay, Cuba -- wrote in Texas v. Johnson:

I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks.

The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right [491 U.S. 397, 421] in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.

When you fly the flag proudly today, or any other day, remember that your right to do so is only protected insofar as the right of someone else to burn the flag is protected as strongly.

Update: Who knew how timely this topic could become? An article posted on the Washington Times web site barely half an hour ago (at 7:33 p.m. EDT) notes:

Officials at a Northern California high school have reversed their decision to shut down a school newspaper that published a front-page photo of a student burning an American flag.

Shasta High School Principal Milan Woollard had said the newspaper and an accompanying journalism class would not operate next year after the "embarrassing" final issue of the student-run Volcano was published June 3. The issue also featured an editorial defending flag-burning as a form of speech protected under the First Amendment.

Flag Fetishization Fails

Shame on the United States Senate! On Tuesday, the world's greatest deliberative body came within one vote of amending the U.S. Constitution to permit Congress to ban flag burning and other forms of flag desecration.

Thanks to the votes of two principled conservatives -- Republican Senators Robert Bennett of Utah and Mitch McConnell of Kentucky -- the amendment failed to get the necessary two-thirds majority to be forwarded to the states for ratification

Still, with 66 votes in favor, that means that 14 Democrats and 52 Republicans have so little respect for the Bill of Rights that they are willing to amend it for rancidly demagogic, election-year gain.

The "conservative" case for flag-burning bans -- laws that would put the United States in the rarefied company of Communist China, Castro's Cuba, theocratic Iran, and Iraq before the overthrow of Saddam Hussein -- rests on the thin reed that flag desecration is disrespectful to U.S. armed forces who fought for freedom in foreign wars.

Balderdash! The most effective and poignant arguments against the amendment come from battle-scarred veterans. For instance, notes Charles Babington in today's Washington Post:

Flag burning "is obscene, painful and unpatriotic," Sen. Daniel K. Inouye (D-Hawaii), who lost an arm in World War II, said in a floor speech yesterday. "But I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves -- even those who harbor hateful thoughts."

After noting the opposition to the amendment of his own father, who flew 33 combat missions over Nazi Germany, Jonathan Alter writes in Newsweek of two other prominent veterans:

Our understandable outrage at flag burning shouldn’t turn our brains to mush. “I feel the same sense of outrage, but I would not amend that great shield of democracy [the Constitution] to hammer a few miscreants,” Colin Powell said when the issue last came up (his position has not changed). “The flag will be flying proudly long after they have slunk away.” Powell argues that a constitutional ban on flag burning is a sign of weakness and fear. Note: The other countries that have banned flag burning include Cuba, China, Iran and Saddam Hussein’s Iraq.

John Glenn, another of the thousands of combat veterans against the amendment (they have banded together in a group called Veterans Defending the Bill of Rights), notes that “those 10 amendments we call the Bill of Rights have never been changed or altered by one iota, not by one word, not a single time in all of American history. There was not a single change during any of our foreign wars, and not during recessions or depressions or panics. Not a single change when we were going through times of great emotion and anger like the Vietnam era, when flag after flag was burned or desecrated. There is only one way to weaken our nation. The way to weaken our nation would be to erode the freedom that we all share.”

I have written about this issue before, most recently last month, when I cited stories (by Nat Hentoff and libertarian Republican Tom Walls) about veterans who oppose the flag-burning amendment. In that post, I linked the proposed amendment to other attempts by Congress and the Bush administration to circumscribe our First Amendment right to free speech.

In a blogpost last year (when the amendment was being considered by the House of Representatives), John Scalzi described how an anti-flag-burning law could be circumvented, noting:

"Protecting" the flag with a Constitutional Amendment won't solve the not-at-all pressing problem of people burning flags for political protest. They'll still do it. They'll simply do it in ways that will now additionally mock the stupidity of those who love the symbol of American freedoms more than they love actual American freedoms. And no matter how expansively Congress defines "the American Flag" there will always be something that is not the flag, but is close enough in its shape and structure to feel just like the flag. And there will be the people who will use that not-quite-flag-like object to protest.

In an article originally written for the libertarian publication, The Freeman, blogger Doug Mataconis of Below the Beltway cut to the logical core of the flag-burning "debate":

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.

Mitch McConnell has proven to be a real hero to those who value the First Amendment, even while so many of his Senate colleagues regard it with contempt. McConnell spearheaded the drive to defeat the McCain-Feingold campaign finance reform law, which places limits on political speech. (Oddly, Senator John McCain voted for the speech limitations of the flag burning amendment, while Senator Russ Feingold voted against it. No one has accused politicians of consistency in their lack of principle.)

I am glad that I am writing about the amendment's defeat today. That is one less bit of political pandering we have to worry about in the future. That is, until the next federal election year.

'Don't Throw Me in That Briar Patch, Mr. Bush!'

The commander-in-chief of the armed forces, President George W. Bush, has handed a major victory to the bigot-in-chief of Westboro Baptist Church, the Reverend Fred Phelps.

On Memorial Day, Bush signed into law the "Respect for Fallen Heroes Act," which, according to an AP report in the Washington Post, was

passed by Congress largely in response to the activities of a Kansas church group that has staged protests at military funerals around the country, claiming the deaths symbolized God's anger at U.S. tolerance of homosexuals.

The new law bars protests within 300 feet of the entrance of a national cemetery and within 150 feet of a road into the cemetery. This restriction applies an hour before until an hour after a funeral. Those violating the act would face up to a $100,000 fine and up to a year in prison.

Fred Phelps, for those who have not heard of him, is a repulsive, anti-gay demagogue who once ran for governor of Kansas as a Democrat and was also a big supporter of Al Gore during the 1988 presidential campaign. He heads up the Westboro Baptist Church in Topeka, where the congregation consists largely of his own wacko family.

Phelps has become notorious because of his "God Hates Fags" website and demonstrations, first outside the funerals of prominent gay Americans (such as journalist Randy Shilts and student Matthew Shepard), more recently at military funerals. I have written about Phelps and his military protests earlier this year, when state legislatures began considering anti-Phelps legislation.

Why do I say that President Bush and Congress have handed Phelps a victory? Two reasons:

First, Phelps has an infantile need for attention. He is like a five-year-old who uses a string of naughty words just to see his parents reaction, or runs naked around the neighborhood to get people to look at him. He thrives on the attention he gains through transgressive behavior. What the Respect for Fallen Heroes Act says to Phelps is this: "You may be a pervert, but you are consequential" -- consequential enough that the full power of the federal government is called upon to deal with him. Like the parent who screams at a misbehaving child, to the child's delight, the government is giving Phelps just what he craves.

Second, the law is transparently unconstitutional. It is aimed at a specific individual and it is a violation of our First Amendment rights to assembly and speech.

Writing in the St. Louis Post-Dispatch, Adam Jadhav reports:

...free speech advocates and scholars have, perhaps more hesitantly, questioned whether public distaste has overrun free speech.

"There's no question the majority of Americans would want to protect their family at such a terrible moment," said Gene Policinski, executive director of the Nashville-based, non-partisan First Amendment Center. "But this is a road we may not want to go down. Today it's a message that we don't like, tomorrow it might be my message that someone else doesn't like."

* * *

"Our position is that you don't honor fallen heroes by trampling on the constitution that they swore to uphold," said Marv Johnson, an attorney for the American Civil Liberties Union.

An oft-cited U.S. Supreme Court case, Frisby v. Schultz, in 1988 upheld an ordinance in a Milwaukee suburb that prohibited picketing outside an individual residence because it invaded the privacy of a home. But the ruling hinted that restrictions beyond that are less likely to be constitutional.

Courts have upheld bans of picketing within 100 feet of a polling place. But others have ruled that a 300-foot buffer zone around an abortion clinic isn't constitutional. How a court would rule on the bevy of laws passed or contemplated could come down to how they're applied.

"Are the police giving the demonstrators a chance to be seen, or even a chance to be heard, by their target audience?" said Ira Carmen, a University of Illinois professor who teaches political science and constitutional law.

While on the surface the law may look like a content-neutral, simple time-place-manner restriction, if you go deeper it becomes clear that this is an act of Congress aimed at stifling a particular point of view belonging to a specific individual or group.

Fred Phelps must be salivating at the prospect of taking his case to court to defend his First Amendment freedoms, winning the case, and seeing headlines that say "Phelps Defeats Homo-Loving Government." (OK, a real newspaper wouldn't write a headline like that, but the newspapers of Phelps' fevered imagination do.)

In other words, despite his protestations about the passage of this law, Phelps is telling the President and Congress, "Don't throw me into that briar patch!" He wants nothing more than an opportunity to bring his rabid views to a wider audience through litigation and the attendant publicity.

Next month, Senate Majority Leader Bill Frist, in his own bit of demagoguery, plans to bring the anti-flag-desecration amendment to the floor for a vote. This would change the text of the U.S. Constitution to carve out an exception to the First Amendment, saying that we are free to say anything we like as long as we do not burn a flag to express our opinions. (The House version of the amendment was sponsored by disgraced former Congressman Randy "Duke" Cunningham of California.)

Writing in the Memorial Day edition of the Washington Times, Nat Hentoff related the stories of two veterans who oppose the so-called "flag-burning amendment":

The day before Flag Day last year, the Houston Chronicle underlined what we will lose if this amendment becomes law: "It makes no sense to set fire to the Bill of Rights to prevent a few people from protesting in a way that many find offensive. The right to speak our minds in public and engage in protest is at the core of our system of government. The only way to effectively desecrate the American flag would be to undercut the freedom for which it stands." And Sen. Robert Byrd, who carries the Constitution in his DNA, speaks for James Madison across the centuries: "In the final analysis, it is the Constitution not the flag that is the foundation and guarantor of the people's liberties."

Among the many veterans opposing the Flag Desecration Amendment is Gary May, who lost both legs in Vietnam while serving with K Company, 3rd Battalion, 27 Marines. Last year, he said: "This amendment would not honor veterans; it would attack the very principles that inspired us to serve our country... We fought for a society free of repression and filled with open debate." This year, on May 6, Mr. May added: "I did not lose my legs, and nearly my life, to protect a symbol." Of all the personal stories by veterans against this attempt to change the Constitution to limit open debate in this country, the most powerful was by James Warner, who, during a previous debate, told of his imprisonment by the North Vietnamese from 1967 to 1973 after volunteering for duty there and flying more than 100 missions before being shot down. Refusing to accede to his captors' offer to be released if he admitted this country had been wrong in Vietnam, Mr. Warner was tortured and spent 13 months in solitary confinement.

During one interrogation, an enemy officer gleefully showed Mr. Warner a photograph of Americans protesting the war by burning the flag.

"There," the officer crowed, "people in your country protest against your cause! That proves you are wrong!" If only Congress and the president would listen to Mr. Warner's answer to the rejoicing jailer: "No. That (photograph) proves I am right. In my country, we are not afraid of freedom, even if it means that people disagree with us. The officer was on his feet in an instant, his face purple with rage. He smashed his fist on the table and screamed at me to shut up. While he was ranting, I was astonished to see pain, confounded by fear, in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool the picture of a burning flag against him." The much-decorated Mr. Warner went on to serve in the White House as a domestic policy adviser to President Reagan during his second term, and is a recently retired corporate attorney.

Tom Walls of the Republican Liberty Caucus put the argument against this amendment forcefully when he wrote during a similar debate nearly a decade ago:

To oppose this nonsensical amendment does not mean one disrespects veterans or is somehow anti-American. I say to support it does not mean that you are a patriot. Leave it to the false patriots to wrap themselves in the flag.

I love America, and the Stars and Stripes always bring a smile to my face. I know how to respect the flag, how to fold it and even how to dispose of it respectfully when worn or tattered. I performed flag duty for years as a Boy Scout and in ROTC.

What needs to be protected from desecration are the principles of freedom our Founding Fathers sacrificed so much to establish. I define patriotism as one's effort to understand these principles. The American Constitution and the Bill of Rights were designed to constrain the use of government power in order to protect liberty. What we need is not more laws but more education in our country's history.

Our military do not serve, fight and die so our government can criminalize flag burning. This law is an insult, not a tribute to them. I come from a military family. My own grandfather was at Pearl Harbor when bombs rained down on his ship. Luckily, he is still around to inspire me. He concurs with me on this, and is enraged by the fact that our government wastes time pursuing victimless crimes instead of real, violent criminals.

As a law enforcement officer told the St. Louis Post-Dispatch, in reference to a soldier killed in action whose funeral was targeted by the Phelps Klan:

"The reason that Christopher Donaldson died was he was fighting for our country and freedom of speech," said Effingham County Sheriff John Monnet.

These two bits of legislation -- the anti-Phelps law and the anti-flag-burning amendment -- are shamefully related. They elevate symbol above substance and in the process erode our liberties.

Flag Day Reflections

In addition to being primary election day in Virginia this year, June 14 is Flag Day, commemorating the adoption by the Continental Congress of what became the Stars and Stripes so familiar to Americans.

Timed for the occasion, the Washington Post ran a review of a new book on the history of the American flag on Sunday, June 12. Historian Richard Ellis reviewed Marc Leepson's Flag: An American Biography. In his Book World review, Ellis wrote:

The many different meanings Americans have attached to their flag are conscientiously explored in Marc Leepson's new "biography" of the American flag. In the early years of the republic, Leepson reminds us, the flag carried little of the emotional freight that it bears today. The Star-Spangled Banner waved over military forts, naval ships and commercial vessels, but ordinary Americans back then would not have dreamed of flying it themselves. Gradually the flag became a more important symbol in American life, but not until the fall of Fort Sumter in 1861 did it become the preeminent patriotic symbol that it has remained to this day.

Leepson's narrative of the development of Americans' flag fetish includes a number of tales well worth telling, especially the late-19th-century fabrication of the myth that a seamstress by the name of Betsy Ross sewed the first American flag. But the story sags at times under the weight of dates and facts, as well as occasionally lifeless prose. In describing an 1865 Civil War victory parade, for instance, Leepson notes that Washington, D.C., "still mourning President Lincoln's assassination, did not go all out during those two days in the flag-display department however."

* * *

Leepson concludes that the "simple fact is that -- despite its changing meaning over the years -- since 1777 the American flag has symbolized the values and ideals upon which this nation was built." He is perhaps guilty of overstating his case here -- it is difficult to reconcile this "simple fact" with his own earlier observation that "in the post-Revolutionary War era, the flag, as a symbol of the nation, played a minor role" -- but he is surely correct that throughout most of American history the flag has represented not only a nation but a set of ideals.

About a year and a half ago, I weighed in on a controversy regarding the American flag: the proper place of the Pledge of Allegiance. This article was published in the Metro Herald on October 17, 2003:

MESSAGE TO SUPREME COURT: PLEDGE ALLEGIANCE TO WHOM?

To the surprise of many, the U.S. Supreme Court will consider an appeal of a ruling last year by the Ninth Circuit Court of Appeals that said the presence of the words "under God" in the Pledge of Allegiance creates an unconstitutional mixing of government and religion. The Ninth Circuit's decision in the case of Elk Grove Unified School District v. Newdow was met with ridicule and disdain when it was issued, and observers of the judicial scene thought the Supreme Court would want to avoid getting involved in this rather emotional argument, better known for its heat than its light.

Needless to say, conservative groups and their spokesmen weighed in fast with their views. When the appeals court ruled, some called for the impeachment of the judges who voted against the phrase "under God." Others welcomed the Supreme Court's taking on of the case as a sign that an obstacle has been raised to those who would destroy our common culture.

Richard Land, president of the Southern Baptist Ethics and Religious Liberty Commission told the Baptist Press: "The Ninth Circuit Court of Appeals' ruling that the pledge is unconstitutional is outrageous even for the looniest of all the federal appeals courts in the land." Jay Sekulow, an attorney with the American Center for Law and Justice, added: "The Pledge is part of an American tapestry of time-honored and historically significant traditions that has come under attack."

These conservatives might not be so eager in their remarks if they knew the history of the Pledge of Allegiance and its intended purpose. While most of us today view it as benign or sentimentally patriotic, a look at its origins illustrates the sinister -- one could say "un-American" -- features underlying the Pledge.

The American Heritage Dictionary defines "allegiance" as "the obligations of a vassal to a lord." Similarly, Black's Law Dictionary defines it as "obligation of fidelity and obedience to government in consideration for protection that government gives."

Writing in the May 2001 issue of the journal The Freeman: Ideas on Liberty, published by the Foundation for Economic Education -- one of the oldest pro-freedom think tanks in the United States -- author and activist Jim Peron reports that the author of the Pledge of Allegiance was Francis Bellamy, a Baptist minister and socialist agitator who was the cousin of Edward Bellamy, author of the socialist utopian novel, Looking Backward (1888).

Francis Bellamy composed the Pledge for a magazine called The Youth's Companion, which first published it on September 8, 1892, and promoted it vigorously. As Peron relates the story, "Bellamy, like his cousin, wanted to use government schools to help promote a socialist agenda. He felt that one way of encouraging this agenda would be the teaching of state loyalty. To this end he wrote a pledge, which students across the country were asked to take. With a few minor changes this pledge is what is now called the Pledge of Allegiance."

Peron goes on to note that "Bellamy attempted to accomplish several goals with his Pledge of Allegiance. He saw it as a means of inculcating support for a centralized national government over the federalist system of the Founding Fathers." Moreover, Peron writes, Bellamy "originally toyed with the idea of making the Pledge more openly socialistic, but decided that if he did so it would never be accepted."

Why not? Because the American republic was founded on constitutional principles that are antithetical to socialism and its parallel, feudalism, in which the citizen is a mere vassal to a superior lord. The Pledge of Allegiance stands on its head the American commitment to universal but individual rights of "life, liberty, and the pursuit of happiness" (as Thomas Jefferson put it in the Declaration of Independence). In its place it puts fealty to the will of the state and the subjugation of the individual to an amorphous "society."

Whether or not reciting the Pledge of Allegiance in government schools is unconstitutional will be decided soon by the U.S. Supreme Court. But conservatives who view the Pledge as sacrosanct should not be too quick to condemn an "adverse" ruling without first thinking about the implications of the history and the text of the Pledge itself. If they do, they might realize that they are supporting something quite at odds with what they hold dear about America.

While the Supreme Court hears this case and decides how to rule, we citizens have an opportunity to reflect on the Pledge's implications, as well. The unsettling conclusions we draw should lead to deeper wisdom and a better appreciation of individual liberty as promised by the Constitution.

Richard Sincere is author of Sowing the Seeds of Free Enterprise and The Politics of Sentiment, among other works.

We know now that the U.S. Supreme Court decided, precisely a year ago (on June 14, 2004) that it is still permissible for schoolchildren to say the Pledge of Allegiance despite the presence of the phrase "under God." The Court did not rule on the merits of the case, however, noting merely that Michael Newdow, who brought the original lawsuit, lacked standing to do so. Speaking for the Court, Justice John Paul Stevens wrote:

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow’s right to communicate with his child–which both California law and the First Amendment recognize–and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

The issue has gone away -- for the moment. I only wish the conservatives who are the most vociferous proponents of the Pledge would realize how anti-American "pledging allegiance" is.

Because it is a social ritual, I still participate in Pledge ceremonies as a matter of courtesy. This is simply a matter of respect for the people I am with, much the same as bowing one's head when a dinner party host says grace (even if you are a non-believer) or standing for the singing of "O Canada" before a game at which an American baseball team is playing the Montreal Expos -- er, that is, the Toronto Blue Jays. (I guess they don't still sing "O Canada" at RFK Stadium for Washington Nationals games.)

But being polite does not necessarily suggest approbration as much as it does mild toleration and considered resignation.