First amendment wrongs - argument that flag burning is not free speech - editorial

National Review, July 9, 1990 by John O'Sullivan

First Amendment Wrongs

* Critics of a constitutional amendment to prohibit flag-burning are, I notice, never described as "wrapping themselves in the First Amendment." Yet if the expression used against their opponents, "wrapping themselves in the flag," means exploiting blind loyalty to a national symbol for partisan purposes, then exactly the same process is at work on the part of the First Amendment's superpatriots.

The wrapping comes in two stages. First, the amendment is misinterpreted. A long line of Supreme Court decisions has read freedom of speech, which should reasonably be given a restrictive interpretation as "freedom of political speech," to mean freedom of expression. This is a nonsense resting upon the confusion between a sum and its parts. Speech is a sub-class of expression, not the other way around.

It is nonetheless defended as "expanding First Amendment rights." But to expand rights is to change the Constitution by stealth--and to do so, moreover, on a partial and prejudiced basis. For the same theorists show no sign of wanting to expand Second Amendment rights by, say, mandating the general sale of cruise missiles.

So the end result of this misinterpretation is that nude dancing, flag burning, Klan hood-wearing, etc., are held to be constitutionally protected against legal restraint. (One need not be opposed to, say, nude dancing to disagree with the view that it is constitutionally protected speech. One might even like it precisely as a holiday from political significance.)

The second stage is to absolutize (or totemize, or fetishize) this misinterpretation: i.e., to lift this view above rational criticism or political argument. Any attempt to hold a rational discussion of legal restraints on expression--however brutal, obsence, or offensive--is at once swept away by a great tide of liberal indignation at the laying of impious hands on the sacred texts. Merely discussing the Bill of Rights has become for liberals what burning the flag is to many conservatives: a secular version of sacrilege.

So, by a nice paradox, the First Amendment is employed to obstruct that freedom of political speech it was invented to protect.

* Of course, it does not follow that offensive expression outside the constitutional protection of free speech should be prohibited. "Rapping" in the style of 2 Live Crew is, by most accounts, obscene and unpleasant stuff. But the offense is not so serious as to attract severe punishment, and in such circumstances legal prohibition serves mainly to inspire publicity. We reasonably content ourselves by informing the public, notably parents, of any obscenity by warning labels on record sleeves. (Some have suggested that this is itself a form of censorship, but even First Amendment fetishists may baulk at the notion that providing information amounts to restricting free speech.)

The flag, however, is the sort of unique national symbol by which a nation is held together and might be thought to deserve unique legal protection. If that could be accomplished without too much trouble, by the simple passage of legislation, there would be a strong case for doing so. If Congress can, under Article III, Section 2, of the Constitution, deprive the Court of jurisdiction on laws protecting the flag, it should seriously consider doing so. But another constitutional amendment would paradoxically make the flag a symbol of national disunity and partisan passions over two long years. It would be better perhaps to allow the odious antics of a few America-haters to remind the other 247 million Americans of the fundamental patriotism that unites them.

* On a happier note, begging has been declared not to be a constitutional right under the First Amendment by a maverick New York court.