Resisting the urge to limit our freedoms
Editor's note: This is a revised and re-edited version of a commentary originally posted on Sept. 11, 1998, under another title. The article has been updated to reflect current activity concerning the flag-burning amendment.
For 213 years, the Bill of Rights to the United States Constitution has stood as a barricade in defense of personal freedoms. Never in those two-plus centuries has this shining monument to the wisdom of our Founding Fathers been revised, much less diluted. In June 2003, the U.S. House of Representatives passed a measure that would inflict grievous harm upon the First Amendment within that Bill of Rights. The U.S. Senate is poised to consider an identical measure, Senate Joint Resolution 4, some time before its adjournment this month.
This legislation proposes to grant Congress the power to prohibit the “desecration” of the American flag. If it passes the Senate by the required two-thirds majority (the vote is expected to be extremely close) and is later ratified by three-fourths of the states, it would become the 28th Amendment to the Constitution.
Here are some points to consider in judging this approach to the flag-burning issue.
A. History & purpose of the Bill of Rights
After establishing the framework for a democratic republic in the first seven articles of the Constitution, its proponents still faced significant opposition in a number of states. They soon realized that American suspicion of government was so strong that ratification of this new charter would require additional protections for the rights of individuals against governmental intrusion. What emerged was James Madison's brilliant Bill of Rights, with the protection of free speech being enshrined in the first of its ten amendments.
The Bill of Rights is purposefully anti-democratic, placing beyond the reach of transient political majorities those rights deemed as absolutely fundamental to the survival and prosperity of a free nation. Our Founding Fathers worried, correctly, that the politically weak and unpopular among us would otherwise fall prey to the passions and prejudices of our elected officials. Abraham Lincoln captured the essence of this idea in his first inaugural address, in which he stated: “If by sheer force of numbers a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify a revolution.”
Thus, any popular support that this proposed amendment may enjoy results more from revulsion at the act of flag desecration itself than from a dispassionate analysis of the measure's merits. What is required of our Senators as they weigh the profound step of rewriting the Bill of Rights is to muster the wisdom and courage evidenced by their forebears and to put little stock in the latest polling data.
B. The Bill of Rights was conceived to place constraints upon government power over individuals
The entire Bill of Rights is about limiting the power of government and securing our individual freedoms. The proposed amendment turns that principle on its head and would place constraints upon the political expression of the people. The only amendment to our constitution that has ever sought to deprive individual liberties is the 18th, which imposed Prohibition. This measure was, of course, repealed only 14 years later by the 21st Amendment.
Freedom of speech, including symbolic speech, is one of the inalienable rights that our Declaration of Independence proclaimed significant enough to go to war. This freedom does not emanate from Congress. It is our birthright as U.S. citizens. Elected officials seldom like dramatic expressions of political dissent. Inherent in such dissent is criticism of those in power. Under Article I, Section 6 of the Constitution, members of Congress have absolute freedom to say whatever they like on the floor of either house — with no legal consequences, even for libeling an ordinary citizen. Yet, certain of these same elected officials would like to limit the people's First Amendment rights and put beyond the reach of reason or the courts the question of whether those in power can prohibit and punish the political speech of those not in power.
C. Purpose of the First Amendment: To protect unpopular speech
The First Amendment was specifically designed to protect the expression of unorthodox views, unpopular ideas, and political dissent. Would it make any sense if it protected only orthodox views, popular ideas, and political harmony? Since when have these ever been in danger? Safe speech needs no guarantees of freedom, no Constitutional protection. The simple yet noble concept of “freedom of speech” — which has drawn so many asylum seekers and other immigrants to our shores over the centuries — would be rendered meaningless if it were limited to the expression of only those views deemed sufficiently agreeable or polite. As the Supreme Court stated in the 1943 case of West Virginia v. Barnette, “No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”
Our Founding Fathers were confident that the new nation they were forging would be vigorous enough to tolerate diversity and protect the rights of those expressing unpopular opinions. Indeed, that tolerance has served America well. As the United States Supreme Court noted in its opinion on the 1989 flag-burning case of Texas v. Johnson: “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 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.”
Vietnam Veteran Len Denney put it another way in an op-ed piece he wrote in 1998 in anticipation of a similar Senate vote then: “If I must continue to tolerate, even protect the rights of people and beliefs that are repellent to my very soul, then so be it. It is a cheap price to pay for my freedom.”
D. Peaceful protest involving flag desecration is a form of political expression
Some say that flag desecration is merely an act, not a form of speech, and therefore deserves no protection under the First Amendment. The Supreme Court held otherwise in Texas v. Johnson, a ruling entirely consistent both with American history and common sense. Just as the flag is a symbol, so too is burning it a symbolic, albeit repugnant, form of expression. This, indeed, is the only possible purpose for such an act (save for Title 36, Section 176(k) of the U.S. Code, but more on that later).
Our forefathers were not unfamiliar with this concept. During the Revolutionary War, George Washington himself defaced a British flag by ordering 13 red and white stripes sewn on it. That desecrated flag was called “The Thirteen Rebellious Stripes.” Similar actions were taken by both sides in the Civil War.
Other “mere acts” throughout our history have served as powerful, if distasteful, expressions of dissent. Vietnam War protesters burned not only flags but draft cards, and thereby helped foment debate on the wisdom of U.S. policy in Southeast Asia. Although they never uttered a word, the colonists who dumped British tea into Boston Harbor sent a message heard around the world.
E. It's the substance behind the symbol, not the symbol itself
For more than 200 years, the Constitution, and particularly the Bill of Rights, has governed the relationship between the government and the people, defining the powers of the former and the rights of the latter. It is, in short, an enunciation of the principles of freedom and democracy upon which our forebears founded this great nation. In this respect, it is profoundly unlike the flag which, however honored, is merely a symbol of those principles. The power of the flag is in its meaning, not its stitchery.
The many brave American soldiers who have died in combat did so defending the values represented by the flag, not the flag itself. One of the most important of these values is expressed in the First Amendment, which guarantees freedom of speech for all. As stated recently by Army veteran Keith A. Kreul, past national commander of the American Legion: “American veterans who have protected our banner in battle have not done so to protect a 'golden calf.' Instead, they carried the banner forward with reverence for what it represents … . Therein lies the beauty of our flag.”
F. As constitutional cornerstone, the Bill of Rights should be amended under only most-compelling circumstances
The Constitution is the “sacred text” of a nation forged upon the rule of law. Its ratification would not have been possible without the Bill of Rights, which has served since then as the single greatest instrument within the Constitution for securing the blessings of liberty enjoyed by generations of Americans. The Constitution is, quite simply, the most important document in our nation, and the Bill of Rights — emulated around the world, but whose freedoms are guarded no more jealously than where it arose — is its cornerstone. As such, those who would propose to tinker with it must be held to an exacting burden of proof, a proof that clearly demonstrates a compelling threat or need going to the fundamental structure of our national government. Of the more than 11,000 amendments proposed to our Constitution over two centuries, only 27 have been ratified — and none of these sought to narrow or limit a freedom guaranteed by the Bill of Rights.
The proposed amendment is, in stark contrast to this burden of proof, a solution in search of a problem if ever there was one. In the 227 years since the American flag was adopted, there have been fewer than 100 reported incidents of flag burning. The greatest concentration of these occurred during a five-year period, in the course of protests against the Vietnam War. Trifling with the Constitution and its Bill of Rights in response to a handful of flag burnings by a few misguided dolts would be overkill in the extreme. America is greater than that.
G. Proposed amendment would invite flag desecration
The primary purpose behind a protester's burning of the flag is to draw attention to his or her cause, however misguided. To make flag desecration a special exception to the First Amendment will only make it a more attractive form of protest. Instead of going to jail as a vandal, trespasser or riot inciter, a flag burner would be a political prisoner and a martyr to his or her cause. Whatever publicity one could gain by burning a flag would be magnified a hundredfold were this proposed amendment to become a part of the Constitution. Such a lure would be sure to subject veterans and other good citizens to the sorry spectacle of more flag burnings, not fewer.
H. 'Compulsory patriotism'
During an interrogation by one of his captors, Ivan Warner was shown a photograph of some Americans protesting the war by burning a flag. “People in your country protest against your cause. That proves you are wrong,” said the North Vietnamese officer. “No,” replied Warner, a Silver Star Medal and Purple Heart recipient. “That proves that I am right. In America, we are not afraid of freedom, even when we disagree.” His answer enraged the North Vietnamese officer, giving Warner tremendous satisfaction at having turned the picture of the burning flag against his captor. “What better way to [respond],” Warner later observed about those who would burn the flag today, “than with the subversive idea of freedom?”
In June 1998, less than a year after Hong Kong had been returned by Great Britain to the People's Republic of China, the Beijing-controlled legislature in Hong Kong outlawed the defacement of the Chinese flag. Other authoritarian and totalitarian regimes throughout history have sought solace by guarding their flags. Is this really the company we wish to keep? Blacklists, loyalty oaths and other paranoid infringements of its citizens' civil liberties have been relegated to the dustbin of American history. We should not compromise our time-honored tradition of no-holds-barred political discourse to “save” a flag that has demonstrated its endurance through numerous wars, domestic unrest and other periods of great national stress. A truly free country has nothing to fear from free speech, even protest involving the desecration of the symbol of that freedom.
I. Narrowing scope of a fundamental liberty: down a slippery slope
Virtually all of the Founding Fathers faced prison (or worse) because the government of the time found their speech to be offensive. They knew from firsthand experience how essential to a free society was the protection of even the most abhorrent and controversial of political expression. As Thomas Paine observed: “He that would make his own liberty secure, must guard even his enemy from oppression, for if he violates this duty, he establishes a precedent that will reach to himself.” If one small voice can be silenced by amending the Constitution, it could happen to any or all of us. Do we really want to place in the hands of government the question of what constitutes “good” speech and what constitutes “bad” speech?
And if Congress is willing to tamper with the First Amendment today, what's to stop it from slicing and dicing the other nine parts of the Bill of Rights tomorrow? One footnote invites another. After the First Amendment comes the Second.
J. Respect for flag diminished when state tries to coerce it
“Old Glory” is the paramount symbol of the freedoms that Americans have treasured, and, in a great many cases, died for over more than two centuries. The profound esteem in which it already is held by the overwhelming majority of our 270 million citizens is far too great to be enhanced by criminalizing any gestures against it. What a terrible irony it would be, then, if for the first time in our history a portion of the Bill of Rights is carved away under the guise of “saving” the flag. As the Supreme Court stated in Texas v. Johnson: “We do not consecrate the flag by punishing its desecration, for in so doing we dilute the freedom that this cherished emblem represents.”
The flag-desecration amendment would not only eviscerate the First Amendment; it would also send a signal to the world — friends and foes alike — of a nation unconfident of its citizens' allegiance and of its ability to endure criticism and dissent. Any additional measure of respect that might somehow be gained through threat of imprisonment would be neither earned nor deserved. If this measure were to pass, would we really be able to look upon the flag with quite as much pride and reverence as before?
K. Existing laws address isolated incidents of flag-burning
Most acts of flag-burning already are punishable under existing larceny, trespassing or public property statutes. The First Amendment allows punishment for acts of desecration performed in such a way as to incite a riot or produce a danger to others. All four persons who desecrated American flags in 1994, for example, were prosecuted under such statutes. Desecrating a flag that belongs to the government or to a non-consenting individual is already punishable under the existing Federal Flag Code (4 USCA Sects. 1-10 ).
L. Defining 'flag,' 'desecration' difficult
Nowhere in the proposed amendment are the terms “flag” and “desecration” defined. The form of any statute Congress might pass were this measure to become a part of the Constitution is, at this point, anybody's guess. The American Heritage Dictionary of the English Language (4th edition) defines “desecrate” as “to violate the sacredness of.” Not even the most ardent veterans groups argue that the flag is a religious icon. What kind or degree of disrespect might rise to the level of “desecration,” particularly where the object in question — the American flag — is a secular symbol? Since burning is, under Title 36, Section 176(k) of the U.S. Code, the proper method for disposing of a worn flag, how would police and prosecutors determine which burnings are “proper” and which are not? Would any improper means of handling, storing or displaying a flag — Sections 174 through 176 of Title 36 contain 171 lines regulating these subjects — constitute imprisonable flag abuse?
As for the flag itself, would this proposed amendment permit incarceration were someone to manufacture paper towels with an American flag motif? Could you play football on a muddy field wearing a Tommy Hilfiger shirt with a flag across the chest? Could you eat an ice cream cake flag? What might happen to someone who disrespects a picture of a flag, or an actual flag with 48 or 52 stars? While criminal defense attorneys may prosper, the proposed amendment would create a nightmare for prosecutors and judges, and could be used for unintended censorship.
M. Answer to ignorant, repugnant speech: more speech, not less
In its opinion in the Johnson case, the Supreme Court stated: “We can imagine no more appropriate response to burning a flag than by waving one's own … . 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.” In 1976, a crowd at Wrigley Field in Chicago actually burst into a spontaneous rendition of “God Bless America” when two protesters ran onto the field and tried to burn a flag. How utterly, beautifully American a response!
Arresting someone who is demonstrating peacefully, if utterly obnoxiously, only vindicates that person's hatred. Legislation cannot change the hearts and minds of men nearly so effectively as education. As to false or repugnant speech, Supreme Court Justice Louis Brandeis wrote in Whitney v. California that “the remedy to be applied is more speech, not enforced silence.”
The proposed amendment not only would be ineffective at accomplishing its stated purpose of protecting the flag from desecration; it would itself desecrate the Constitution and the Bill of Rights. Americans who believe that desecration of the American flag must be outlawed are allowing an emotional reaction to something they find highly offensive to overrule the well-reasoned conclusions of our Founding Fathers.
John S. (“Chip”) Keating is an attorney in private practice. He lives in Marshfield, Mass.