Bork Says He Would Have Swung Flag Vote Other Way

Times Staff Writer

If the Senate had confirmed the nomination of Robert H. Bork to the Supreme Court, it would still be a crime to burn the American flag in political protest, the former U.S. appellate court judge indicated Sunday.

Bork said he finds it "incomprehensible" that the court ruled flag burning is protected by the First Amendment. Justice Anthony M. Kennedy, named to the court after Bork was rejected by the Senate, cast a swing vote in Wednesday's 5-4 decision. If Bork had been on the court instead, the 5-4 vote would have gone the other way, he indicated.

"The flag is a unique kind of national symbol, one of the few symbols of our community," Bork said on the ABC-TV program "This Week With David Brinkley." "Preventing its desecration does not prevent you from expressing an idea."

Outraged Reaction

The court's decision that reversed the conviction of a demonstrator who burned a flag in protest at the 1984 Republican National Convention in Dallas produced an outraged reaction on Capitol Hill. The Senate on Friday approved legislation intended to re-enact a flag desecration law that would meet the constitutional test set down by the high court.

But Bork, a former Yale University law professor, U.S. solicitor general and federal appeals court judge, said that Congress cannot overturn the court's decision without amending the Constitution.

"I think there's no way of curing this by statute," Bork said. "I think the only way of curing this decision would be by constitutional amendment, which would really not be an amendment to the Constitution so much as it would be an amendment to some judges."

Senate Majority Leader George J. Mitchell (D-Me.), a former federal judge, also denounced the decision, but he said that the Senate action "will re-establish the federal law against burning or otherwise defiling or desecrating the flag."

Not All Conduct

Mitchell said on NBC-TV's "Meet the Press" program that "the First Amendment protects speech, it does not protect all conduct, even conduct that is related to speech."

However, House Speaker Thomas S. Foley (D-Wash.), also interviewed on ABC-TV, said that it would be a mistake for Congress to change the First Amendment in the emotional atmosphere that followed the court's widely unpopular decision.

"I have yielded to no one in my denunciation of burning the flag," Foley said. "But there's a difference when you move into a constitutional amendment that touches on First Amendment freedoms. We're dealing with the most core privilege and right of Americans to free expression."

The court's decision won the approval of Charles Fried, solicitor general in the Ronald Reagan Administration.

"I think that's a wonderful decision," Fried said on the CBS-TV program "Face the Nation." "When I think of what's happened in Red China and what happens in Iran, I'm glad we've got no doctrine of civil blasphemy. . . . It makes me prouder of the flag, rather than the opposite."

The solicitor general is the U.S. government's top courtroom advocate, arguing the government's side of cases that come before the Supreme Court.

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