Flag Burning? Seriously?

Flag Burning? Seriously? May 19, 2009

No, this is not a repeat. You didn’t wake up in 1989 all over again. Put away the acid-washed Levi’s and the Roxette CD. Sen. Chuck Grassley of Iowa is sponsoring a resolution to pass a constitutional amendment outlawing flag burning. And he defended it in an interview recently:

We think that burning a flag is desecration of the flag and that we should not desecrate the flag that there’s been a lot of bloodshed by our veterans and people in uniform to protect the flag as a symbol of our country.

So it simply says that desecration of a flag is not protected by the First Amendment because the First Amendment was not written — if you read the debate in 1790 — the First Amendment was not written to protect nonverbal speech. It was to protect verbal speech and, more importantly, political speech.

So you weren’t put in jail when you talked against the government as you were in England that the particular time. And so we want to make sure that we get the Constitution back to its original intent before the Supreme Court screwed it up.

He really should have been wearing a mullet and a Member’s Only jacket while doing that interview, with some hair metal playing in the background. This is straight out of VH1’s I Love the Late 80s. Flag burning? We’re seriously still worried about flag burning? Come on, we all forgot about Joey Lawrence, we can forget about this too.

Coincidentally, Eugene Volokh has a new law review article out on this very subject, titled Symbolic Expression and the Original Meaning of the First Amendment. And Grassley is flat wrong, even from the standpoint of conservative originalism, the First Amendment would protect symbolic expression under the free speech clause.

This Article argues that the Court has had it right all along and that the
Court’s critics are mistaken on originalist grounds.11 The equivalence of symbolic
expression and verbal expression is consistent with the First Amendment’s original meaning:

1. Late-1700s and early-1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.

2. This logic and tradition of equivalence extended to speech protections–a term I will use as shorthand for “free speech or free press protections”–as well as to speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the “press”) appeared to be no less and no more protected than spoken and printed words. In fact, the first American court decision striking down a government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

3. And this equivalence of symbolic and verbal expression fits well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that “the freedom of speech, or of the press” was tantamount to Madison’s original draft of the clause: the “right to speak, to write, or to publish.” And the term “to publish” included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.

Even Justice Scalia recognized this when he joined the majority in Texas v Johnson in 1989. The proof that this is intended solely to punish the expression of a particular political viewpoint is quite easy to find. All you have to do is look at the U.S. Flag Code, which specifically prescribes burning the flag as the proper way to dispose of a flag that is old and worn out:

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

No law banning flag burning would alter that, it would only punish those who burn the flag in a political protest. It could hardly be any more clear that such a law is intended solely to punish the expression of an unpopular political opinion, precisely what the First Amendment forbids.

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