The case for flag-burning

THERE ARE MANY ARGUMENTS AGAINST a proposed constitutional amendment to outlaw “the physical desecration of the flag of the United States.” Let us count the ways in which the amendment, which is disturbingly close to the 67 votes required for Senate approval, is unworthy of that body’s support:

* It’s a “solution” to a problem that doesn’t exist. There has been no epidemic of flag-burning since the Supreme Court ruled in 1989 that destruction of Old Glory as a protest was symbolic speech protected by the 1st Amendment.

* The reintroduction of this amendment is part of the Republican Party’s election-year attempt to rile up its social-conservative base, a “panderama” that already has produced a proposed constitutional amendment to ban same-sex marriage, which failed earlier this month. That reality alone should cause Sen. Dianne Feinstein (D-Calif.) to reconsider her support for the flag-burning amendment.

* As Sen. Mitch McConnell (R-Ky.) pointed out, “The 1st Amendment has served us well for over 200 years. I don’t think it needs to be altered.” Placing a no-flag-burning asterisk next to the amendment’s sweeping guarantee of free speech is a mischievous idea, and it could invite amendments to ban other sorts of speech Americans find offensive.

But the best argument against the flag amendment is the one some opponents are reluctant to make for fear of political fallout: It would make America less free.


Rare as flag-burning may be, a nation that allows citizens to denounce even its most sacred symbols is being true to what the Supreme Court in 1964 called the “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In that decision, and in 1989, the court interpreted the free-speech protections of the 1st Amendment generously but correctly. The Senate, including Feinstein and fellow Democrat and Californian Barbara Boxer (who has opposed a flag-burning amendment in the past), should let those decisions be.