It’s Our Right to Offend and Outrage : Flag Furor Ignores What First Amendment Is All About

Not only do I fly the flag on the 4th of July, but ordinarily I celebrate Independence Day with fireworks illegally smuggled from my neighboring state of New Hampshire.

For years I had a flag sticker affixed to a pickup truck. I belonged briefly to the National Rifle Assn. And I still get an occasional lump in my throat at the singing of “The Star Bangled Banner” before the Red Sox begin another episode in their disastrous season. Loving the flag and “the Republic for which it stands,” I am not so much horrified (there are more horrible things on every news broadcast) as I am shocked and repelled when the flag is burned in public, usually as a gesture of protest against the policies or values of the United States.

However I was not shocked, not even surprised, when the Supreme Court--by an ominously close margin--decided that burning or “desecrating” the flag as an act of protest against America was an exercise of freedom of speech protected by the First Amendment.

Of course it is.

Freedom of speech includes the right to attack America--verbally or symbolically--or it is little more than an expression of mild good will rather than the cornerstone of democratic liberty it has always been thought to be.

The wording of the Founding Fathers is brief, direct and unequivocal: “Congress (and the states, courtesy of the 14th Amendment) shall make no law . . . abridging the freedom of speech . . . “ “No law” means no law. “Abridging,” according to the Oxford English Dictionary, means to “curtail, to lessen, to diminish.” If there is any ambiguity at all, it is in the word “speech,” which does not include inciting to riot, rebellion or other acts physically endangering our fellow citizens. But that was neither the purpose nor the result of Gregory Johnson’s act when he doused the flag with kerosene and ignited it in front of a few dozen demonstrators in Dallas during the 1984 Republican convention. He was trying to make a point and chose to do so in a manner most Americans find repulsive. But he was clearly acting within his rights . . . and ours.

Indeed, some of the most distinguished figures of American history have gone much further than Johnson’s futile, childish actions. Thomas Jefferson, whose eloquent statement of human rights in the Declaration of Independence has resounded through the centuries, spoke out in favor of periodic armed rebellion against the government, claiming that “a little rebellion now and then is a good thing . . . God forbid we should ever be 20 years without such a rebellion.” And he meant not protest, but armed and bloody revolt to refresh “the tree of liberty.”

A century later, William Lloyd Garrison--ultimately to be known as the Great Liberator--publicly burned the Constitution of the United States, calling it “an agreement with Death and a covenant with hell.” In response to his abolitionist views, a Boston mob dragged Garrison through the streets. He would have been lynched were it not for the intervention of the mayor, who personally despised Garrison but felt it his duty to uphold the law and, not incidentally, Garrison’s right to speak and to burn the most sacred of American documents--not merely a symbol of the country, but its substance. Not too many years later, Garrison was a guest of Abraham Lincoln at the White House--an honor that is unlikely to befall Gregory Johnson.

Today, scattered through the shelves of America’s libraries are myriad books assaulting the policies, values and historical conduct of the United States. There are writers who have accused us of hypocrisy, and others of fascism. From the right are attacks on democracy itself and the liberties that make us a free nation.

Only a few years ago the American flag was removed from dozens of capitol and state buildings in the South, to be replaced by the banner of the old Confederacy. Over the centuries, from Jefferson to Johnson, the country has withstood the most ferocious verbal and symbolic assaults. It has done so because of the inherent strength of the free values that distinguish us as a nation; and, in part, because we have given every citizen the right to speak freely and act peacefully in opposition to government and country alike.

The core, the essence, of the First Amendment is to protect people whose views--however expressed--are “profoundly offensive” to the majority. We need no First Amendment to safeguard those who advocate motherhood, family and making money. It is designed as the guardian of those whose views are found offensive. The reason is twofold: First, the views of a small and despised minority may, in the marketplace of ideas, finally prevail, as was the case with the abolitionist. The second, and more important though less pragmatic, is that the right to express one’s view, however offensive, is the heartbeat of a free society. A man who cannot say what he thinks or believes is not a free man.

Which leaves us only with the question whether there is something about the flag that should exempt it from the First Amendment. Here again, the answer is no . The flag is an established symbol of America. But it is not the only one. There is the Great Seal of the United States, the Constitution, the Declaration of Independence, the President himself in his capacity as chief of state. Are these somehow lesser symbols that can be freely burned while the flag alone should be protected? Of course not. But why stop there? How about a satiric and mildly obscene version of the Star Spangled Banner recorded by the latest stars of heavy metal? Or the Pledge of Allegiance, substituting the word hate for love , chanted from the stage of an off-Broadway theater.

Offensive? Yes. Perhaps repulsive. But not criminal, not under the First Amendment that includes the right to offend and outrage your fellow citizens.

The flag is not a religious icon, but one among many symbols of the secular state. It ranks high on the list, but it is not alone. Indeed, it is irrational, although politically comprehensible, that the government is trying to change the Bill of Rights to protect the flag alone, ignoring the desecration of symbols far more transcendent. According to the Pledge of Allegiance, a principal plank in the platform last year of candidate George Bush, we are “One nation under God.” Yet no one thinks to erect a barrier to protect the symbols of God who, even the most patriotic politician would admit, occupies a rank in the order of things many universes higher than the fragment of globe that is America. Still, the symbols of his earthly church--the cross, the Star of David, the Islamic crescent--can be burned and desecrated in public demonstration without punishment (with the exception of vandalism). It is true that the First Amendment protects freedom of religion (and irreligion) as well as speech. But if we intend to change it, why not protect the Divine--or at least his earthly body--as well as the country?

The suggestion is not absurd, not meant--wholly--as satire. It only illustrates that if by constitutional amendment--hurried through by politicians anxious to kneel to the immediate wishes of their constituencies--we are making distinctions for which there is no warrant in reason, feeling or importance, then we are setting a hazardous precedent.

The Bill of Rights has served us well for two centuries. Let only those of stature equal to the men who wrote it now act to change it. By that standard there is little cause for concern. The amendment wouldn’t get a single vote.