The U.S. Constitution Says We All Have to Live With Being Offended

“Congress shall have power to prohibit the physical desecration of the flag of the United States and the flying of the Confederate flag.”

OK, so that’s not exactly how the proposed flag protection amendment reads; I’ve added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

Some people argue that flag burning shouldn’t be protected by the 1st Amendment because it isn’t “speech.” Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language and should be constitutionally protected; but if I’m wrong, then both should be unprotected.

Burning the U.S. flag deeply offends many people. But so does waving the Confederate flag. Many Americans died defending the U.S. flag--many of them fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

It’s true that many people see the Confederate flag as not just a symbol of the Confederacy and of a slave state rebellion prompted by the election of an anti-slavery president. They also see it as a symbol of other things, such as Southern pride. But likewise, some people burn the U.S. flag not because they hate the United States, but only because they want to protest what they see as the U.S. government’s errors. Like most symbols, flag burning and flag waving often mean subtly different things to different people.

So one danger of the flag burning amendment is the slippery slope. If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them. Think of it as censorship envy--if my neighbor gets to ban symbols he dislikes, why shouldn’t I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

Of course, it is likely that the slippery slope will be resisted here, and the Confederate flag will remain protected. But the U.S. would be even more endangered by a selective ban on flag burning alone.

Right now, when people--mostly blacks--are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too.

The Constitution says we all have to live with being offended. We must fight the speech we hate through argument, not through suppression.

But what would we say when flag burning is banned but other offensive symbols are allowed? We in the majority get to suppress symbols we hate, but you in the minority don’t? Would the minority feel better about the United States because of this argument?

The 1st Amendment was drafted and interpreted by people who intimately understood cultural, religious and political conflict and who knew how calls for censorship could launch the most bitter of culture wars. It is a truce: I won’t try to suppress your ideas if you don’t try to suppress mine. And the flag burning amendment risks shattering this truce.