Protecting Even the Most Horrid : * The Case of Flag Burning and Rap Music

In October of 1788, James Madison, then deeply enmeshed in the struggle to establish a new American Constitution, wrote this to his friend Thomas Jefferson:

In October of 1788, James Madison, then deeply enmeshed in the struggle to establish a new American Constitution, wrote this to his friend Thomas Jefferson:

“Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents . . . It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power; and that the line which divides these extremes should be so inaccurately defined by experience.”

For 200 years, Americans have sought that line, and it was on the wisdom gained in the search that the U.S. Supreme Court relied on Monday, when it again struck down a law prohibiting vandalism of the American flag.

Writing for the court majority, Justice William Brennan argued that “while flag desecration . . . is deeply offensive to many, the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable . . . . Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

Many Americans do not agree and, as Madison anticipated, their elected representatives are eager to act on their behalf. Yet flag burning, though a very noxious form of expressive speech, does not threaten the country’s basic well-being. Any attempt to end it by adding unneeded amendments to the Constitution or rewriting the Bill of Rights would.

A future without the First Amendment’s absolute guarantees can be glimpsed right now in Miami, where anti-pornography crusaders are embarked on a campaign against the rap music group 2 Live Crew. Rap is an art form whose aesthetic derives from the concerns, rhythms and linguistic distinctiveness of African-American street culture. It often deals explicitly with violence and sexuality. This has outraged Florida authorities, who convinced a federal judge to declare some of the group’s song lyrics obscene. Armed with that ruling, they have arrested (in addition to a record store owner for selling a 2 Live Crew album) members of the band who performed material from the recording in a night club. In other words, American artists have been jailed for singing a song.

The two centuries that have passed since a weary Madison unburdened himself to his great friend have taught us many lessons about self government. One of them is that liberty of thought and conscience--and the freedom to express the ideas to which they give rise--are the foundations upon which the edifice of American democracy rests.