flag burning amendment

Via California Insider (registration required). USA Today is reporting that the Senate is gearing up to vote on a Constitutional amendment to ban flag burning. Five Democrats, including Diane Feinstein of California and Ben Nelson of Nebraska, have co-sponsored the resolution. The House will vote on the amendment next week. If both the House and Senate pass the amendment, then it goes to the individual states for ratification.

I feel fairly strongly about free speech, because dialog, especially political dialog, is necessary for a democracy to function. One reason we tolerate offensive ideas is that yesterday's "offensive" idea may eventually win out over the currently accepted beliefs and become the new common wisdom. For example, consider once heretical ideas like "women should be able to serve in the military" or "there should be no slavery." Another reason is to provide a safety valve and warning: if someone is angry enough to be offensive, it is often better for the rest of us to let them express that offensive speech or action, both so that we can identify who they are and how angry they are, and so that they don't wait until they're so angry that they take action rather than just express themselves about it.

There are limits, however. The limits generally come because free speech is in tension with other rights that are also important. Those rights might or might not be listed in the Constitution. For example, free speech rights often come in conflict with a right to privacy: may an employee of a police department tell a newspaper the names of rape victims?

Currently, burning the flag is protected under the First Amendment as a form of free speech / free expression. While it is a very offensive statement to desecrate the flag, I'd rather that statement stay protected. The reason is that, as I mentioned earlier, if someone is so angry that they're willing to make such an offensive political statement, I'd rather they be able to do it, so that I know who they are and can do something about it.

It will also be difficult to create an amendment that isn't overly broad: what constitutes desecration, and what is a flag? Those flags people fly out their car windows start looking pretty ratty after they've been flapping in 70mph wind-streams for a few thousand miles. Is that desecration? What about dirty bumper stickers that say "these colors don't run" where the red has completely faded away? Use of the flag in commercials? Political advertising?

On the other hand, there's a certain irony in the amendment. The flag is the symbol of our country. Restrictions on our civil rights have been increasing lately. Perhaps it's fitting that the symbol represent that fact.