The Electric Commentary

Wednesday, June 28, 2006

Flag Burning

I would like to file for a motion of summary judgment against Brian in this flag burning amendment discussion. For you non-lawyer types, summary judgment basically means that, even if I concede that everything you say is correct, your conclusion is still wrong. At Brian's blog he tries to make the case for an amendment to the US Constitution that would prohibit flag burning. Here's a sample:

First, contrary to what most Americans assume, current free speech protection has not been a fundamental American right for most of our history. Most people agree that the original intent of the First Amendment free speech protection was freedom from prior restraint. The First Amendment was not presumed to protect people from the consequences of their words. To be fair, there were some who argued for a more expansive understanding of free speech even in the founding era, but even they would be shocked at the types and scope of speech we allow today.


First of all, this basic premise is false as even Brian concedes in this phrase:

To be fair, there were some who argued for a more expansive understanding of free speech even in the founding era,


But even if we concede that the intent of the First Amendment is to prevent governmental "prior restraint" (and indeed, this is a large part of it), that just makes my point (which is that a flag burning amendment is horrible, terrible, flies in the face of what makes America great, and does far more damage to the Constitution both aesthetically and functionally than fire does to a flag). A flag burning amendment is, after all, prior restraint. No extra-Constitutional jurisprudence would be necessary to invalidate such a law, and I suspect that the founding fathers would frown on any such attempt to do so.

Brian goes on to say:

Second, though I'll just mention it here, there is at least an argument accepted by some members of the Court that flag burning is not constitutional speech. For not every politically connected action is or should be constitutionally protected (like burning crosses in the yards of civil rights pioneers with the intent to intimidate or as some believe, giving unlimited monetary contributions to political candidates of your choice).


This argument boils down to semantics, but I think it is fairly obvious that flag burning is speech. Try this syllogism:

1. If I want to greet you, I will wave.

2. A wave is clearly speech. It communicates the message of "hi" through nonverbal communication.

3. A wave would never be construed as meaning "I want to fan you," which is an action potentially associated with a wave.

4. If a wave meant "I want to fan you," it may exit the realm of speech and enter the realm of conduct. Like punching someone in the face, for instance.

5. In order for flag burning to be considered conduct, and not speech, I assert that one of the following possibilities would have to be true:

a. I wish to use this flag to start a larger fire.
b. I am cold. Perhaps this can make heat.
c. I want to get high off of these flag fumes.
d. Someone else owns this flag. I don't like him/his flag.

However, most flag burners are communicating the following message:

a. I am unhappy with the policies of the United States.

This message has little to do with the actual combustion of a flag. It is clearly showing displeasure for the government that the flag represents. Occasionally, this message is even useful, as with the Vietnam War. However you feel about Vietnam, it was certainly legitimate to criticize the government for that action, and flag burning sent a very clear and very powerful message.

I must take the next paragraph sentence by sentence. I agree with most of it.

Third, the argument above seems to fall into the slippery slope fallacy. That is, if we set aside some speech that has been protected and no longer protect it, we will begin to lose the whole First Amendment.


Even if there is no slippery slope here (and I fear a slippery slope of resorting to Constitutional amendments for piddly issues), this is factually a weakening of the First Amendment. That fact, in and of itself, should be enough to subject the flag burning amendment to a great deal of scrutiny.

I think this just plain wrong. My sense is that Americans of all stripes are more committed to the ideal of free political speech than we ever have been.


I agree. It is precisely the reason that this amendment flies in the face of not only the ideals of the founders, but of the ideals of most people.

Sure we have debates over campaign finance reform and university speech codes, but we all generally agree on the value of free speech. And current debates are nothing compared to the limitations on speech throughout American history. I would ask this--do we really think that an amendment prohibiting anti-war speech is soon to be proposed, passed by Congress, and ratified by the states? I think not.


Except that this is a ban on anti-war speech. This amendment puts the government in the position of prescribing the methods by which one can disagree with the government. That is an evil concept, and the First Amendment exists specifically to prevent such a thing.

Perhaps the most perverse concept that Brian asserts is as follows:

The Constitution is not a sacred or Scriptural document that we should not mess with. It is a supermajoritarian legal document that sets out the basic framework and values we agree upon as a people in large supermajorities. Constitutions have no cosmic or metaphysical essence. There are good Constitutions and bad Constitutions and everything in between.


Brian is correct. The Constitution is nothing of the sort. But neither is the Flag! In fact, if we're deciding which item holds more significance as a symbol of the nation, I cast my vote with the Constitution. If the Constitution is not so important that we may amend it willy-nilly (an idea which Brian defends in this essay), then surely the flag is not so important as to warrant any legislative action at all. If we are treating national symbols with such disrespect, let us treat all of them equally.

I will conclude with this:

Vast majorities of Americans believe strongly in free speech, and find nothing un-American or dangerous about saying that burning the very symbol of our freedom goes too far. Since the Court thought differently, let's display our commitment to country and freedom by amending the Constitution to say so.


I believe that the preceding paragraph can be summed up as follows:

Let us show our commitment to freedom by removing a small portion of it.


I can't believe that I even have to write something like this. It should be self evident by now that this is a ridiculous idea that politicians drag out every election cycle in an attempt to pander to the overly patriotic.

This amendment does not protect the flag at all. It protects the government. They don't need any more protection. They have tanks.

3 Comments:

  • Well said. I couldn't believe it when I read that post. That guy went to law school for Chrisake.

    By Blogger JesusIsJustAlrightWithMe, at 9:08 AM  

  • A Gallup poll this month showed 56% of Americans supporting the constitutional amendment and 41% opposing it. I'm just amazed that so many senators would do something so obviously political and so obviously counter to everything this country supposedly stands for just to score political points on an issue that the American people are relatively divided on.

    By Blogger MDS, at 11:44 AM  

  • Thanks Paul.
    I had a temptation to go into a similar point by point refutation of all of the various flaws in Brian's spiel, but I figured it would be really long, tedious, and boring. Anyway I feel much better now that someone else has (without the long, boring, tedious).

    Oh, and MDS, I think 56% is looking pretty good to any Republicans who are in office right now.

    By Blogger Scott H, at 2:03 PM  

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