Congress grows weak-kneed in defending free expression

Thursday, June 10, 1999

(Published May 5.)

Not content to take the First Amendment at its word and essence, Congress appears poised — for the first time in U.S. history — to qualify, and thereby to diminish, the Bill of Rights.

The Senate this week very well may approve a proposed constitutional amendment to outlaw the desecration of the American flag, a form of political expression that the Supreme Court has properly granted constitutional protection.

Advocates of the amendment argue that desecrating the flag is a despicable, intolerable offense against the nation. Granted, such an act is indeed despicable, showing as it does contempt for the ideals that most Americans cherish. Yet those ideals are not so flimsy that they are reduced to smoke and ash just because some misfit sets the flag aflame. In fact, they grow more supple and resilient by the exercise of the tolerance that publicly exposes and discredits the hateful motivations giving rise to misguided ideas.

That, after all, is the essence of freedom: inviting diverse, conflicting thoughts into the crucible of civic debate. How sad that so many in Congress appear to be losing confidence in the spirit of liberty.

Those who are horrified by the burning of the flag ignore the fact that acts of its desecration are so rare. The Congressional Research Service could document only 43 instances — hardly a basis for weakening the Bill of Rights.

All burnings of the flag, however, are not equal. The ritual by which worn and damaged flags are “retired” involves ceremonial immolation. Thus opposition to the torching of the Star-Spangled Banner rests in opposing the thoughts and attitudes of those who ignite the fabric. That, in effect, is outlawing thought, and therefore repugnant to the spirit of liberty.

A year ago, the Chinese government imposed heavy fines on protesters who defiled the Chinese flag during a pro-democracy demonstration. The judge cited the need to protect a sacred national symbol and to deter future desecrations that could incite riots among offended patriots.

Authoritarians in China aren’t bound by a First Amendment. Congress, for now, has no such excuse.