Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, July 7, 1995 TAG: 9507110022
SECTION: EDITORIAL PAGE: A-13 EDITION: METRO
SOURCE: CHARLES LEVENDOSKY
DATELINE: LENGTH: Long
Is that desecration?
Members of the House of Representatives, in a stampede to show us just how super patriotic they are, overwhelmingly passed a proposed amendment to the Constitution which would allow Congress and the states ``to prohibit the physical desecration of the flag of the United States.''
Slathering and bumping into one another as they rushed to vote, their heels stomped all over the core meaning of the First Amendment.
Reason couldn't head them off. Argument couldn't.
Not even the Constitution can halt a herd of congressmen when they want to prove to voters they are patriotic. They don't hear anything but their own mooing trepidation.
If the Senate doesn't stop this proposed amendment, free speech will have another exception carved out. One that impacts political speech.
The First Amendment is clear and decisive: ``Congress shall make no law ... abridging the freedom of speech ... '' But once again Congress is mucking about with our liberties.
Some say that flag burning isn't speech. Then why are these folks so upset about the flag being burned? Obviously, the act does communicate something. It expresses a profound disagreement with the policies of the federal government.
The ``not speech'' ploy is an attempt to persuade us that the proposed amendment would not limit the First Amendment.
These same folks, who claim flag burning isn't speech, would react in anger if someone silently gestured at them with a raised middle finger.
Of course, there is symbolic speech.
And some acts are eloquent speech.
The U.S. Supreme Court recognized that more than 60 years ago when it ruled that raising a red flag to show support for worker unity was protected speech. And again 25 years ago, when the high court protected the right of students to wear black armbands to protest our role in Vietnam. The court considered that a free-speech issue.
Even silent sit-ins to protest racial segregation were recognized as symbolic speech and thus protected by the court.
Burning the flag is the act of someone who has little or no political power.
It is an act of someone who desperately wants to communicate a disagreement with U.S. policy. It shocks us into paying attention to those who could not otherwise command the interest of the media. It presents a grandstand forum in order to express political dissent. Our dissidents are then heard.
This is a profound First Amendment issue for the powerless.
It is easy for those in the power structure to ignore this side of the issue.
A member of Congress can call a news conference whenever he or she wishes. The media will be there. The little guy, the working-class stiff, commands no such attention. Who cares what he or she says?
Nothing in our Constitution could be more significant than protecting the right of the ordinary citizen to express his or her disagreement with the government - so that the dissent will be heard.
This is a profound First Amendment issue for our nation.
Political speech must have the broadest protection - even to include burning the American flag - for us to be able to contend that We the People govern ourselves.
We protect waving the flag or displaying it as a statement of political assent.
The First Amendment means that we must protect burning the flag as a counter statement, a statement of political dissent. That is the essence of freedom of speech.
What your congressmen aren't telling you is that, if they wished - even if the amendment is ratified - they could burn the American flag on the floor of either house of Congress and not be taken to court for it.
Read Article I, sec. 6 of the U.S. Constitution: They cannot be held legally accountable for any speech while in debate on the floor of Congress.
So, We the People, who by inalienable right should have the most expansive reading of the First Amendment, will have a narrower one, while our political servants have the greater. Seems backward, doesn't it?
That's because this amendment is flagrantly, deeply un-American.
And where will this erosion of liberty stop?
Will a few ministers begin a movement to stop people from burning the cross - after all can't the cross be considered a more important symbol than the flag?
And the amendment that passed the U.S. House, if adopted, can generate a different law in each state, and a separate federal law. A multiplicity of flag desecration laws.
What does physical desecration of the flag mean? Does it mean you can be arrested if you wear a bikini with a representation of the flag on it?
The U.S. Code defines the American flag as ``any substance'' that shows the colors, stars and stripes, and could be considered a clear representation. So then what is desecration?
Will the flag be desecrated if you sit down while wearing your flag pants?
Will a frosting flag on a Fourth of July cake be desecrated if you eat the cake?
Confused? That's because we are dealing with a symbol. Symbolism has few boundaries in the real world. But liberty is tangible in our daily lives.
Our Congress seems willing to protect the symbol of our liberties - at the expense of those liberties.
Our representatives have sworn to protect the Constitution, yet in this proposal they violate the very essence of it.
Clearly, our stampeding congressmen have charged off the edge - just to prove they are patriotic. What sad irony.
Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, recently won the American Bar Association's Silver Gavel Award and The Baltimore Sun's H.L. Mencken Award for First Amendment commentary.
- New York Times News Service
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