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Jewish World Review June 26, 2001 / 5 Tamuz, 5761

Nat Hentoff

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Keep the flag flying free -- A PROPOSED constitutional amendment now before Congress would prohibit the desecration of the United States flag. It has been argued in favor of the amendment that it does not punish speech. The amendment -- which would be the first constitutional restriction of the First Amendment in our history -- would punish conduct, not speech, say the amendment's supporters.

This analysis, however, ignores the core reason the United States Supreme Court has twice ruled that flag-burning is indeed protected by the First Amendment as it now stands. Speech is a key component of flag-burning when the flag is desecrated as an expression of political protest.

In the first flag-burning case, Texas v. Johnson (1989), the majority of the Court ruled that when Johnson poured kerosene on the flag and set it on fire in a political demonstration outside the 1984 Republican National Convention in Dallas, his conduct was "directly related to expression."

Writing for the majority of the Court, Justice William Brennan pointed out that "to say the government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning a flag as a means of political protest."

Also joining Brennan in the majority was Justice Antonin Scalia, who is invariably described as the most conservative member of the Court. During oral arguments in that case, Justice Scalia made it clear that there is not "a flag exception for the First Amendment." And Justice Anthony Kennedy, not known as a liberal, in joining the majority decision, said that the flag expresses "the freedom which sustains the human spirit." He continued, "It is poignant but fundamental that the flag protects those who hold it in contempt."

Justice Brennan added, "We can imagine no more appropriate response to burning a flag than waving one's own." That is precisely what my wife and I did during the Vietnam War. We were against the war. Although the anti-war sentiment of many of the people in our neighborhood had turned into a virulent anti-Americanism, we flew the flag on the Fourth of July to bear witness to the fact that America is a place where we are all free to protest against the government.

Obviously, many Americans are enraged when the flag is desecrated, and they make no distinction if that act is done as part of a political protest. Knowing that, Justice Brennan, in his majority opinion in Texas v. Johnson, quoted from a 1943 opinion by Justice Robert Jackson, who later became the chief U.S. prosecutor at the Nuremberg war-crimes trials.

In West Virginia State Board of Education v. Barnette, Justice Jackson penetrated to the very essence of what it is to be an American in a passage I quote every time I'm asked to speak at a school:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

During a previous national debate about whether there should be "a flag exception" -- as Justice Scalia called it -- to the First Amendment, Dale Greer wrote in a letter to the Dallas Morning News:

"If the flag is a symbol of freedom and of our democracy, then it represents ideas just as words represent ideas, and in that case, we've got no more business telling people what they can or can't do with the flag than we do telling them how to think."

Greer then envisioned what would happen to a citizen in Iran or China -- I would add Cuba -- who burned or otherwise desecrated the flag of his nation. "Do we really want," Greer said, "to emulate countries such as these?"

I once gave a commencement address at a college in Pennsylvania, and commended the Supreme Court for its decision in Texas v. Johnson. Outside the building, an angry veteran of the Vietnam War confronted me to protest my view that the First Amendment protects flag desecration. I asked the veteran, who had been seriously wounded in Vietnam, what our flag meant to him.

"Freedom," he said. Then he paused, nodded his head slowly, said "Yeah!" and walked away.

UPDATE: On July 14, the Helms amendment -- which denies federal funds to public-school facilities that refuse access to the Boy Scouts on account of their exclusion of homosexuals from leadership positions -- passed the Senate. So did a second amendment forbidding discrimination against any youth organization, including the Boy Scouts, on the basis of sexual orientation. Groups that admit homosexuals will also have access. Both amendments satisfy the First Amendment.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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