Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, October 13, 1995 TAG: 9510130021
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: STEPHEN B. PRESSER
DATELINE: LENGTH: Medium
No less a figure than the president of the American Bar Association, George Bushnell, at that organization's annual convention this past summer claimed that the proposed amendment is "the first in our country's history to restrict freedom of speech and freedom of political protest."
Even some ostensible conservatives have decried the amendment, as has Bruce Fein, a lawyer in Washington. Fein complains that uncertainties caused by the word "desecration" or by the term "flag" would result in an avalanche of litigation that would have the perverse result of encouraging flag burning and making martyrs to free speech of flag burners.
This kind of hysterical opposition to the amendment by those who ought to know better is baffling unless one understands that there is something vital at stake here, something of the essence of American democracy itself.
The arguments of the amendment's critics are overblown, to say the least. Until the Supreme Court's decision in Texas vs. Johnson in 1989, the act of flag burning had been distinguished from speech, and for 100 years, flag-burning legislation had been on the books. The problems of defining "flag" or "desecration" were regarded as no more troubling than any other matter of statutory clarification. Both terms were then (and are now) quite narrowly circumscribed by case law, statutes and traditional understanding.
The Bill of Rights was not in danger then; it is not in danger now.
Some of the country's greatest liberal jurisprudes, most notably Supreme Court Justices Earl Warren and Hugo Black, had no trouble distinguishing between flag burning and the kind of pure speech the First Amendment protects, or allowing state governments to legislate to protect the American flag.
Why, then, do so many commentators view the flag-protection amendment with such alarm? Why do they perceive it as a fundamental assault on the Bill of Rights? Why do they, and why did a majority of the Supreme Court in 1989, insist that flag burning be classified as protected speech rather than simply as a prohibited act, say on the order of spray-painting the Washington monument with radical slogans or even taking potshots at the president? Both of these might be perceived as "expressive acts," of course, but even ABA presidents probably could understand that those acts were not what the framers of the First Amendment had in mind. Why couldn't George Bushnell make the same distinctions Earl Warren and Hugo Black could?
Apparently the ideology of self-actualization, the notion that our highest value is individual expression, the belief that what America ought to be all about is allowing the flowering of divergent lifestyles and personal fulfillment, has clouded the judgment of many of our leaders and opinion-makers. Thus, they have been led to draw a line between speech and acts at a point that maximizes expression lest anyone's individual fulfillment be stifled.
But America never has been about merely the flowering of self. No society can long endure with its highest value as the selfishness of individuals. Over the years, the protection of our one sacred national symbol has been an expression of another value: that with our rights come responsibilities to each other.
Those who have fought for our nation on foreign soil, those who have lost loved ones and wept over their flag-draped biers, are entitled to a measure of our deference and respect, because the kind of sacrifices we have demanded of them have ensured and will ensure that our republic will endure. The way we have traditionally expressed that deference and respect is by according special protection to the flag itself, through flag-desecration statutes.
The majority of the Supreme Court in 1989, as Justice Rehnquist observed in his dissent in Texas vs. Johnson, condescendingly declared that the way we express the spirit of American democracy is by tolerating expressions that are odious to us, but there's more to our republic than that. The flag-protection amendment deserves passage because it would simply return us to the wiser view that we all have a responsibility to respect the sacrifice of those who have given their very lives for our freedom, which we do by allowing the people to protect the flag itself.
Stephen B. Presser, a professor of legal history at Northwestern University School of Law, is the author of "Recapturing the Constitution: Race, Religion and Abortion Reconsidered."
by CNB