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Deconstructing the Flag-Burning Debate
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19265 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
7 / 1991 |
2,718 Words |
| Author
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Stephen Bates
Stephen Bates, a lawyer, is an adjunct research associate at
the American Enterprise Institute. He is author of If No News,
Send Rumors: Anecdotes of American Journalism (Holt, 1991). |
The debate about a flag-protection constitutional amendment may have generated more heat than light, but it wasn't for lack of trying. While the press and the public fixated on spurts of demagoguery, the controversy was actually animated by sweeping principles. Now that tempers have cooled, these principles deserve scrutiny; they serve to illuminate essential aspects of our Constitution, our politics, and our culture.
Freedom of speech does not include conduct.
This argument sounds plausible, but some forms of conduct are plainly communicative: mime, semaphores, sign language, a fist of protest, a candle of peace. Flag burning differs from those only in obnoxiousness.
Consider Gregory Lee Johnson, who was convicted for torching a flag while chanting "America, the red, white, and blue, we spit on you." What if Johnson had recited the Pledge of Allegiance and explained to police that he was disposing of a worn-out flag by the preferred method, burning? He wouldn't have been prosecuted. The Texas law applied only to someone who mistreated the flag "in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action."
Under the First Amendment, we can't prohibit otherwise legal conduct simply because we don't like the message conveyed. Some conservatives, in arguing that the Supreme Court had gone too far by protecting flag burning, misrepresented this rule. The Court never said that we can't prohibit otherwise illegal conduct that happens to convey a message. The First Amendment doesn't protect someone who blows up a government building, no matter how strong a message the action conveys.
Although some conduct is communicative, it doesn't necessarily follow that conduct must enjoy First Amendment protection. If the Supreme Court had taken a different path a few years ago, communicative conduct would be largely unprotected. The lines would be hard to draw--holding up a placard might be protected, for instance, and parading around with it wouldn't be--but judges would manage.
The Court didn't take that path, though. Given the well-established doctrines, the justices rightly ruled in Texas v. Johnson (1989) and United States v. Eichman (1990) that flag burning is speech. To rule otherwise, as four justices wanted to do, would have required the Court either to dump a great deal of doctrine or to
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