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Chris Field- Contributor
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Time, Consider Lighting Yourself on Fire
I love the U.S. flag. And I'll support what it takes to
[Chris Field] 7/12/05
of the discussions of who will replace Sandra Day O'Connor,
the Supreme Court's outrageous rulings (particularly the "Kelo" case
allowing government to steal property and the "McCreary
County" case forbidding the Ten Commandments in two Kentucky
courthouses), and the patriotic celebrations of our nation's
independence we all experienced last weekend provided for me
a reminder of the need to protect our flag constitutionally.
the House voted 286 to 130 for the following flag-protection
constitutional amendment: "The Congress shall have the
power to prohibit the physical desecration of the flag." The
bet is that the amendment has 65 votes in the Senate, two shy
of the two-thirds (67) needed.
there are many of you out there who disagree with prohibiting
flag-burning or any effort to amendment the Constitution, or
both. But allow me to make a brief case for the amendment.
uniquely represents the common bond shared by the people of
this nation. No matter our differences--party, politics, race,
religion, economic status, or whatever-- we are united as Americans.
It is a unity symbolized by a single emblem, the American flag.
As the visible embodiment of our nation and its ideals, the
flag has come to symbolize hope, opportunity, justice, and
freedom to the people of this nation and to people all over
the world. As Chief Justice Rehnquist put it, "Millions
and millions of Americans regard it with an almost mystical
reverence regardless of what sort of social, political, or
philosophical beliefs they may have."
for example. Those who put their lives on the line to defend
the flag have a deep appreciation for everything it symbolizes.
When an American flag has been in danger of capture, soldiers
have risked, and lost, their lives to prevent it from falling.
Many liberals probably consider such heroics foolish, but most
Americans understand that soldiers who die to defend the flag
die nobly in defense of principles they hold more precious
than life itself. Most Americans strongly share that attachment
to the flag.
society our flag symbolizes has strong protections for individual
rights. In throwing off tyranny, our Founding Fathers were
careful to make sure that the republic they established would
not simply substitute a tyranny of the majority. In securing
those rights, perhaps the most important right that was guaranteed
was the right to free speech, because a democracy could not
function if dissent were suppressed. At the same time, our
Founding Fathers established the right to free speech as a
right, not a license. The Constitution was not intended or
understood to grant a free speech license to say or do anything
one pleases to express opinion. A right confers responsibilities
as well as privileges in a civil society. Individuals are provided
freedoms to act as protections from tyranny from the majority,
but they are not free themselves to become little tyrants against
on free speech have never been limited to procedural parameters
such as the time, place, and volume of speech. Content limits
have also always existed. For instance, speech that threatens
to cause imminent physical harm, like shouting "fire" in
a crowded theater, or inciting a crowd to riot, is not protected.
Speech that causes intangible harm, like obscenity (which the
Supreme Court has called pollution of the moral environment)
or the disclosure of confidential personal information also
is not protected.
But the Supreme
Court narrowly decided in 1989 (Texas v. Johnson) and again
in 1990 (United States v. Eichman) that burning a flag is expressive
conduct that is protected by the 1st Amendment. Both cases
were decided 5-4. What is perhaps most important to note about
these cases is that they overturned a federal law and laws
in 48 states against desecrating the flag. Some of those laws
had been on the books and enforced for over 100 years.
For 200 years,
it was understood to be constitutionally legal to protect the
American flag from desecration to express one's views, but
the Supreme Court suddenly found otherwise. It declared that
the 200-year understanding and practice of barring desecration
as a means of expression was unconstitutional, because it thought
that the interest of a state or the federal government in preserving
the flag as a "symbol of nationhood and national unity" was
not important enough to outweigh the infringement on anyone's
free expression rights who wished to burn it. The majority
simply asserted in Texas v. Johnson that the respondent "was
prosecuted for his expression of dissatisfaction with the policies
of this country".
was prosecuted, as Justice Stevens correctly stated in his
dissension, because of the method he chose to express his dissatisfaction.
He would not have been prosecuted if his words had not been
accompanied by his burning of the flag. But it's important
to note that he could have been prosecuted if he had instead
chosen to accompany his words by using a motion picture projector
to plaster slogans on the side of the Lincoln Memorial. (The
legitimate, tangible interest protected would have been the
preservation of the quality of an important national asset.)
scholars believe such a distinction between flag-burning and
misusing the Lincoln Memorial is correct because burning "a" flag
is not the same as burning "the" flag. They say that
there are countless American flags, but there is only one Lincoln
Memorial which is clearly owned by the federal government (also
known as the American people). But a flag is never just "a" flag,
something to be owned and treated as one wishes. Every flag
is "the" flag. When millions of viewers watch in
anger and horror as police protect a hateful protestor as he
burns the flag, they do not comfort themselves with the false
reassurance that he is burning a facsimile. They know that
there is not any official flag tucked away safely somewhere
in a federal vault. In this country of, by, and for the people,
they understand that every flag is theirs.
own this country and they own every flag. Individuals who possess
flags possess something which they have no right to desecrate.
Again, the distinction is between liberty and license. Justice
Fortas once opined: "A person may 'own' a flag, but ownership
is subject to special burdens and responsibilities. A flag
may be property, in a sense; but it is property burdened with
peculiar obligations and restrictions."
of a flag does not really give ownership--it gives stewardship. tOR
2005 Human Events