Ken Berwitz

This year, as in previous years, some members of congress will propose an amendment to the constitution which would ban burning the American flag.

Is this reasonable?  Well, here is the beginning of  an article by Eugene Volokh in today's Wall Street Journal which argues against the amendment.  See what you think:

Flag Burning and Free Speech

The Founding Fathers agreed that the First Amendment protected 'symbolic expression.'

By EUGENE VOLOKH

Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.

 

Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, "if you read the debate in 1790 -- the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the

Supreme Court screwed it up." Or, as Judge Robert Bork argued in his book "Slouching Towards Gomorrah," flag burning "is not speech," and the court shouldn't have held "that an amendment protecting only the freedom of 'speech' somehow protects conduct if it is 'expressive.'"

 

Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood "freedom of speech, or of the press" to include symbolic expression as well as verbal expression.

The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.

Personally, I do not like seeing the American flag burned.  I find it objectionable, offensive and usually juvenile. 

But, yes, it is free expression -- my reaction to this particular exercise of free expression notwithstanding. 

Let it go and move on to something else.