Tuesday, June 27, 2006


Flame On

The latest constitutional debate began in the Senate yesterday. This particular amendment blustering pops up every couple of years because of the 1989 case, Texas v. Johnson. The Supreme Court determined in a 5-4 decision that the burning of the American flag is an example of constitutionally-protected speech.

The majority decision was written by William Brennan and signed onto by Thurgood Marshall, Harry Blackmun, Antonin Scalia and Anthony Kennedy. William Rehnquist, John Paul Stevens, Byron White and Sandra Day O'Connor dissented.

The majority decision:

There is, moreover, no indication - either in the text of the Constitution or in our cases interpreting it - that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons [491 U.S. 397, 418] who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole - such as the principle that discrimination on the basis of race is odious and destructive - will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.

It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to "preserv[e] the national flag as an unalloyed symbol of our country." Spence, 418 U.S., at 412 . We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks "any state interest whatsoever" in regulating the manner in which the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see 36 U.S.C. 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations. To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest. "National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement." Barnette, 319 U.S., at 640 .

We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown [491 U.S. 397, 419] man will change our Nation's attitude towards its flag. See Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the burning of an American flag "`is an act having a high likelihood to cause a breach of the peace,'" Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD Ill. 1971) (citation omitted), and its statute's implicit assumption that physical mistreatment of the flag will lead to "serious offense," tend to confirm that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag had been burned.

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that 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 own 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.

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. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag [491 U.S. 397, 420] burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
Anthony Kennedy added in a brief concurring opinion.

The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right [491 U.S. 397, 421] in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.
Scalia did not write a separate opinion, but has explained his view in various later speaking forums:

Scalia, a Reagan appointee who has served on the nation's highest court since 1986, has angered both liberals and conservatives at times with his opinions. In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.

"I would have been delighted to throw Mr. [Gregory Lee] Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it." While Scalia's literal interpretation protects those rights expressly written by the framers in 1791, he said he doesn't recognize rights that many people today take for granted as constitutional.
Thank you, Justice Scalia. If only enough senators understand that amending the First Amendment isn't such a great ide, partly for reasons which I alluded to a few years back. Little has changed since then.

UPDATE: Sorry, NR friends: You're wrong...

damn close! Too damn close!

UPDATE II: NRO's editorial in defense of the amendment is really disappointing. The editors say:
The Supreme Court got it wrong in 1989 and 1990, when it struck down first a state law and then a federal law banning flag-burning. The First Amendment protects freedom of speech, not freedom of “expression”; and burning a flag is no more speech than nude dancing, public urination, or a barroom brawl — although each of these things may express people’s thoughts and feelings.

(Emphasis added).

OK, got that? One more time: "The First Amendment protects freedom of speech, not freedom of 'expression'...burning a flag is no more speech than nude dancing, public urination or a barroom brawl --although each of these things may express people's thoughts and feelings."

Yet, in April, NR editors took House Republicans to task for taking a dive on campaign finance reform and regulating the 527 political organizations:
Regardless of these tactical calculations, there’s a strong free-speech argument against restricting 527s. Indeed, the GOP itself used to make that argument: McCain-Feingold’s most onerous constraint — the prohibition on broadcast ads that mention a candidate within 60 days of an election — provoked cries of bloody murder from congressional Republicans convinced it violated the First Amendment. How can the same party now justify dragging a whole new class of organizations under that rule? We may not like it that liberal billionaires spend their money on causes we disagree with, but it is their right to do so — and if they’re going to, directness and transparency are preferable to a labyrinth of non-profit groups and tax loopholes.

Here, NR's editors uphold the long-held conservative belief that -- per the Buckley vs. Valeo Supreme Court decision -- money (in the context of political donations and expenditures) is speech, and thus, deserving of First Amendment protection.

So given NR's view on flag-burning, what should be the response to a future Supreme Court that might say "a political contribution is no more speech than nude dancing, public urination or a barroom brawl -- although each of these things may express people's thoughts and feelings"?

And that, folks, is why they call it a "slippery slope."

Technorati Tags: , , ,

Bookmark and Share

<< Home

This page is powered by Blogger. Isn't yours?

Web raggedthots.blogspot.com
Weblog Commenting and Trackback by HaloScan.com AddThis Social Bookmark Button
Technorati search
Search Now:
Amazon Logo
  •  RSS
  • Add to My AOL
  • Powered by FeedBurner
  • Add to Google Reader or Homepage
  • Subscribe in Bloglines
  • Share on Facebook