Free Speech Is Not for Burning

For the third time since the Supreme Court ruled in 1989 that flag burning is a protected form of speech, the House of Representatives has endorsed a constitutional amendment to give Congress and the states the power to prohibit the “physical desecration” of the U.S. flag. If the Senate also approves the amendment by a two-thirds vote it will go to the state legislatures, where ratification by three-fourths of them would make it law. One of the most vital protections provided by the 1st Amendment would be needlessly and ominously weakened. In the past the Senate has refused to go along with efforts to ban and punish this odious but seldom-seen form of expression. It should have the good sense to reject it again.

The difficulty, of course, is that no one in Congress wants to be accused of coddling flag burners. For most Americans the flag is the central symbol of national identity, the focus of patriotic emotions. That’s exactly what has made it a target for attack in a handful of protests in recent years. But the repellent actions of a few hardly justify the extreme measure that supporters of the flag-burning amendment seek. As Justice William J. Brennan Jr. wrote so wisely for the Supreme Court majority eight years ago, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

The flag-burning amendment is so loosely drawn--its key word, “desecration,” is not defined--that once adopted it could invite sweeping and even frivolous prosecutions far beyond its purported intent of protecting the flag from deliberate and hateful disrespect. Over more than two centuries this great republic has survived, prospered and risen to world leadership. It has done so without having to fearfully alter its Constitution to limit the basic right of free expression.