Flag Burning, Veterans, and the First Amendment

Personally, my favorite sentiment that I have heard expressed regarding the proposed flag desecration amendment is that we should heed the recent warnings of the Surgeon General about secondhand smoke and ban all flag burnings lest we all die from breathing noxious secondhand flag burning smoke! But beyond agreeing with that sentiment, I have other reasons for still supporting the amendment.

Primarily, it is not a matter for the Supreme Court to have decided as it did in 1989. Just like with Roe v. Wade, which overturned abortion laws in 45 states, so Texas v. Johnson overturned laws prohibiting flag burning in 48 states! That is judicial activism in a nutshell, and it's not how this country is supposed to work.

Secondarily, I think there is confusion over free speech which feeds into the flag issue. This confusion is most epitomized by veterans I have seen, heard, or read about who take the position that there is just about nothing they hate worse than the desecration of the American flag, but regardless of their own feelings "freedom includes the right to burn the flag in protest." (This kind of sounds like the "Personally, I'm against abortion, but . . . " argument.) Neal Boortz (the "High Priest of the Church of the Painful Truth," in which I have "lost faith") who would never himself desecrate an American flag, nevertheless wrote in his "Neal's Nuze:"

The headline on foxnews.com this morning read "First Amendment Lives Another Day." Well put. The so-called "Flag burning" amendment to our Constitution has failed ... by one vote. Freedom wins ... by one vote.

Get down on your knees and thank God or Allah or whom ever is politically correct to worship these days; the flag burning amendment failed in the Senate! The scary part, folks, is that it failed by just one vote. One vote! That means sixty-six of our Senators (out of 100) voted in favor of an amendment that would limit your right to freedom of expression. Sixty-four Senators wanted to use the United States Constitution to limit your freedoms, rather than to limit the range of government power.

I disagree with this contention that the First Amendment "free speech" clause protects such acts. (Notice that Boortz broadens the language from "free speech" to "freedom of expression.") Veterans who grimace and support flag burning do it because they think their Constitution, which they are sworn to support and defend, demands it. However, the protection of speech is the protection of the right to dissent. Public disagreement is not only allowed, but encouraged and protected. The Founders greatly desired to protect this right. But "speech" is not "behavior." The Founders did not limit speech, but they did limit behavior. Now, this is a difficult distinction to maintain, but it can be illustrated in the Founders attitude toward treason.

• Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Article III, section 3, clause 1)
  

Here the Founders looked back to 1350 and Edward III's treason statute, which limited treason, among other things, to "compassing or imagining the death of the king, levying war against the king, or adhering to the king's enemies, giving them aid and comfort." Notice that the Founders dropped the language of "compassing or imagining," which had been easily abused in the English doctrine of "constructive treason." So, the Constitution limits treason to treasonous behavior, and does not extend to treasonous speech.

No one wants to stifle dissent against the government. But the uniqueness of the flag as a symbol of all Americans leads many to want to protect it from desecration. Either way, it should be decided by the People, not the Court.