Monday, June 26, 2006

Congress shall make no law... except when it does

Today the Senate began debate on another Flag Burning Amendment. The bill, sponsored originally by Rep. Randy Duke Cunningham (R-California) (FYI- Cunningham used it as a means by which he would literally wrap himself in the flag before being taking away for corruption) and now by Senator Orin Hatch (Utah) proposes an amendment to the constitution which will consist of: "Congress shall have the power to prohibit physical desecration of the flag." Over the years there have been numerous laws to seek this goal; however, these laws were overturned in a 5-4 Supreme Court decision in Texas v. Johnson. In that decision, conservative Justice Scalia on the side of the majority, as he does with a lot of free speech issues).

This may be the first time in the Country's history where there is enough support for the Amendment. It is a vote or two away from passing in the Senate; it will pass in the House. It would most likely pass in the States (38 are needed). It would divide the states for years though.

I am always interested in legal issues, especially with the first amendment. Personally, I find that flag burning ought to be a protected form of political speech for the following reasons:

(1) It is speech in the sense it sends a message, especially in political contexts. (In the Johnson case, Johnson burned the flag during a political rally to protest the Reagan administration). Political speech needs to receive the most protection by the First Amendment.
(2) It is unpopular speech and unpopular speech needs protection. What is and what is not constitutional should not be made based on the tastes of the majority. Flag burning is speech and if someone does not like it, then do not engage in conversation with the person doing it.
(3) The cure for bad speech is more speech: If you do not like someone burning a flag, try to get that person to stop burning the flag. Persuade the person, do not write a law in order to stop someone.
(4) Laws against flag burning are enacted to suppress speech and not protect the flag. Most of the flag burning laws did not want to stop people from wearing flag shirts, portraying flags on napkins and throwing them away, putting the image of a flag in a cake and then eating it, displaying a flag outside and having the colors fade, placing a flag on a car and having the edges of it tear. All of these are acts of desecration.
(5) There are few acts of flag burning in this country. One report, from a group that wants to protect the flag, reported that there had only been three this year. Most of the flag burning incidents happen outside of this country and this amendment will not stop it.
(6) This is just political grandstanding and Congress had more important issues to deal with.

The arguments against flag burning receiving constitutional protection:

(1) It is a special symbol and it needs protection. Rehnquist wrote along these lines in Johnson. I do not find this very persuasive. It enough people want to protect something, then it becomes unconstitutional?
(2) Majorities across the country want this law and will pass it.
(3) Flag burning is not speech; it is an act. This is a very restricted view of the first amendment. It would call into question a lot of other communicative practices, such as art, movies, the internet, etc.
(4) There are other means by which the speaker can present his/her message. This may be true, but the style of the message does alter the content of the message. Burning a flag sends a different message then saying: “I protest the policies of this country.”
(5) Flag burning is offensive. Since offensive is subjective, it is hard to create criterion to judge whether or not something is offensive. Something that is offensive to one receiver (in the communication process) is not offensive to another. Sen. Arlen Specter today said, “"Flag burning is a form of expression that is spiteful or vengeful. It is designed to hurt. It is not designed to persuade." This makes Sen. Specter (and those that support the amendment) the definers of offense. I would no longer be able to discern for myself what is offensive.

As I said before, I believe that this should not pass. I do not see how the arguments in favor of the amendment are better than the arguments against it. The only possibility is that #2 above is how the system of representative government works, though it would violate the first amendment. Also, even though #2 above is how the system works, it places control of the first amendment in the hands of the majority.

Have I missed anything?