This week, the Senate will vote down a proposed constitutional amendment protecting the American flag from desecration. Every few years, the Senate considers a constitutional amendment to ban flag burning, and every few years, the Senate kills it. Many of our esteemed Senators tell us the First Amendment is about protecting the rights of those who would spit on the nation; they say we should have better things to do than worry about those who would excrete on the flag; they tell us our founders would be ashamed of an amendment to protect the flag. They are fools of the highest order.
The First Amendment guarantees freedom of speech. It protects political speech designed to contribute to the political debate. As James Madison and Thomas Jefferson wrote in the Virginia Resolution of 1798, "[the] right of freely examining public characters and measures, and of free communication among the people thereon [has] been justly deemed the only effectual guardian of every other right."
Not all expression or speech contributes to the political debate. That is why the First Amendment does not protect flag burning, just as it does not protect lap dances, sodomy, public nudity or child pornography. All of these may be labeled "expressive speech." All of them would land you in jail for most of our history. For nearly two centuries, states prosecuted flag burners. And for nearly 200 years, the federal courts recognized that the First Amendment did not prohibit states from such prosecution.
In 1989, the Supreme Court suddenly decided that 200 years of legal interpretation were dead wrong. "The way to preserve the flag's special role is not to punish those who feel differently about these matters," wrote Justice Brennan. "It is to persuade them that they are wrong. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial."
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