WASHINGTON -- Perhaps I have been guilty of a failing that Alexis de Tocqueville warned against in his 1835 prescient guide to America through the ages, "Democracy in America." He warned that our democracy was most likely to breed "general apathy."
Quite possibly, I have been apathetic about the fragile condition of freedom in our time. I took it for granted that my fellow Americans relished their freedoms and would defend them.
To be sure, we have accepted the government's incursions into our ability to earn incomes free from onerous taxation. We have allowed its incursions into the workplace and the schoolroom. But always these incursions were justified by government claims to "doing good" -- for instance, to helping the poor, to protecting workers from heartless employers, that sort of "doing good." I can understand the average citizen's confused adjournment of political rights under those clever claims.
Yet our freedom of speech and freedom of expression is a right not so easily brought to confusion.
Government is ordered by the Constitution to stand clear when we express ourselves. It is not to clamp the cuffs on those who utter unpopular thoughts or to close down unpopular presses and websites. It is not to subpoena the private papers of journalists or to demand their sources.
When Sen. Patrick Leahy, D-Vt., threatened mine, I expected my fellow journalists to rush to my defense. To the contrary, some actually egged Leahy on. That astounded me, and I can tell you it astounded the handful of writers who urged Leahy to take the clear words of the First Amendment to heart. Where were the writers? Most likely, they were where Tocqueville predicted they would be, in apathy's lush meadows.
That is a bad sign. Yet it has roused me to think more rigorously about the condition of free speech. Right now, there is an amendment proceeding through Congress that would ban burning the American flag. For years, I have been ambivalent about it.
Careful students of freedom such as Supreme Court Justice Antonin Scalia are not. They see such public demonstrations as flag burning and picketing as matters of free expression. But I took issue with him, at least half-heartedly, arguing that a flag is not a word, and flag-burning is not speech. In our hearty democratic debates, some lunatic gasbag can freely stand up and denounce the Great Republic as racist, or as pagan, or as that sweetly sozzled old gasbag Gore Vidal would say, equivalent of Nazi Germany. They are wrong, but the Constitution protects them.
Burning the flag struck me as a different matter. I argued that it was not speech. Scalia argues that it is covered by the First Amendment because it is intellectual expression, like waving a placard or a bloody shirt. He made the case in 1989 in a five-to-four decision that flag-burning was protected by the First Amendment.
Ten years of mulling over his argument convinces me he is right. Burning an American flag is shameful. For it is the flag of a good country and the emblem borne by our soldiers and sailors in fighting for many good and historic causes. Beyond being shameful, burning the flag is a particularly cruel insult to veterans and their families. But it is expression that ought not to be banned in a free republic.
The amendment against flag-burning should be defeated for the long-term health of a free society. Also, it should be defeated for the good of a peaceful society, free of angry cranks and of cops who might busy themselves by enforcing a problematic law that might distract them from the serious business of keeping the peace.
After all, once this amendment is in place, cranks will only be encouraged to test the law and make themselves famous. And cops will be encouraged to patrol all things red, white and blue. In researching this matter, I have come across reports of cops pulling citizens over for flying flags from their pickups and locking them away for days until some public-spirited lawyer came to the defense. One of the victims of police zealotry was actually flying the flag out of patriotism -- but his patriotic protests got him nowhere. Similarly, one can imagine the provocateurs burning flags that were only similar to the Stars and Stripes and then ridiculing the amendment in court.
Yet the clearest reason for not passing this amendment is that it encroaches on the First Amendment rights of speech and expression. On behalf of those freedoms, Tocqueville reminds us we had best remain vigilant, lest apathy allow those freedoms to go aglimmer. Flag-burners are despicable, but First Amendment encroachers are dangerous.