BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
APRIL 30, 1997
I am a civil libertarian. I believe that, in a democracy, freedom of speech must be "robust and wide-open." Indeed, I believe it ought to be MORE robust and wide-open than the Supreme Court has, on some occasions, been willing to grant. It's because of that belief that I support a new constitutional amendment, one that would permit the Congress - if it so chooses - to protect the flag of the United States against physical desecration.
This last condition is the one that concerns us now. Everyone agrees that there must be "procedural" parameters of free speech - involving, for example, places and times at which certain modes of expression are permitted. In addition, everyone accepts certain "substantive" parameters of speech content. The following principle, after all, is clear: Government not only may sometimes regulate the content of speech - sometimes it should do so in order to protect the system of freedom of speech in general.
The Supreme Court affirms this principle. It refuses to privilege speech that threatens to cause imminent tangible harm: fact-to-face fighting words, incitement to violation of law, shouting "fire" in a crowded theater. And it does not stop there. It also rules out protection of speech that threatens certain intangible, even diffuse, harm. It has, for instance, described obscenity as pollution of the moral "environment." But what about "political" speech? What about speech critical of the government? Isn't there a bright line protecting that, at least so long as no imminent physical harm is threatened? The answer is: NO. The Court has made clear that the content of speech criticizing the official conduct of a public official may be regulated if it is known to be false and damages the reputation of the official. The Court, indeed, has gone farther and suggested that such speech should be regulated since it is "at odds with the premises of democratic government." This rule was set forth by the Warren court. It was announced in opinions by Justice Brennan, the very opinions that insisted freedom of speech be "robust and wide-open."
Recently, a consensus has been growing around the following proposition: Important "substantive" parameters of public expression, parameters that have been long taken for granted, now need to be restored. The bonds that hold us together - and so make it possible, as in a healthy family, to engage in "robust" disagreement with one another - appear to be disintegrating. On the right, on the left and in the center, it is widely agreed that certain parameters must be reestablished if free speech, in general, is to flourish.
On the right, it's believed that "uncivil" and "unreasoned" speech content needs to be checked. The Supreme Court, on occasion, has interpreted the First Amendment in light of that belief. The problem, of course, is that this tends to invite regulation of speech content that is very broad and vague, suffocating free, spontaneous participation in the marketplace of ideas. On the left, it's believed that "hate" speech - beyond face-to-face harrassment or fighting words - needs to be checked. On occasion, the Court has read the First Amendment in light of that belief as well. The problem again, is that this tends to invite broad and vague regulations suffocating freedom of spontaneity in publich speech. What's worse, both these prescriptions - by drawing blunt distinctions among "types" of speech and speakers - may, unintentionally, tend to set us apart from each other, even further disintegrating - instead of reaffirming - the bonds that unite us even in disagreement.
In the center, however, there is widespread support for restoration of a much narrower, more focused parameter: protection of the U.S. flag from physical desecration. This proposal, first of all, avoids of the vices of the broader, vaguer alternatives. It's virtue, moreover is that - by means of an extremely minimal constraint on freedom, taken for granted until recently - it affirms the most basic condition of our freedom: our bond to one another in our aspiration to national unity. It leaves it to individuals, in a thousand other ways, to criticize government and even that aspiration to unity, if they want. But if affirms there is some committment to others, beyond mere obedience to the formal rule of law, that must be respected. If affirms that, without some aspiration to national unity - call it patriotism if you choose - there might be no law, no constitution, no freedom.
Still, objections abound. Is this "important" enough? Is it "needed?" Is it likely to be "effective?" Aren't there "less drastic alternatives?" Isn't it too "risky?" These questions deserve answers.
A common objection goes like this: True, the aspiration to national unity is vital but, as embodied in the flag, it is just symbolic. What place does symbolism have in the Constitution? The answer is that the framers of the Constitution put symbolism of our unity at the very beginning of the document, invoking "We the People of the United States." And, very near the end, they required that all officials, high and low, be "bound by Oath or Affirmation, to support this Constitution" - a provision that, surely, is less functional than symbolic, yet whose symbolism fulfills, nonetheless, an important function. Animating the whole Constitution of 1787, after all, was the aspiration to call into being a new sense of commitment, a commitment to a broad and deep national unity - despite difference. What was it, at the beginning, but a bold symbolic effort?
But, we hear, that's all over now. The nation exists. What need is there to revisit old ideals? Yet the framers knew that nothing, on its own, lasts forever. Every institution must be reenergized by every generation to meet new challenges. Can we deny that our generation is now challenged to renew our commitment to unity-despite-difference? The aspiration to even a minimal unity is, once more, commonly put in question. We hear that the freedom the flag symbolizes is the freedom to burn it, that our unity consists simply in a celebration of disunity. These claims go to the heart of our Constitution. It is in the Constitution that we must answer them.
We hear that flag desecrators are like a few "naughty, nasty children" trying to "provoke their parents." The rest of the family, we hear, need only "count to ten." Take the analogy seriously for a moment. How healthy is a family in which there are no limits to expressive abuse, in which everything can be trashed and will be tolerated? Desecration of our mutual bonds as a nation may be fairly rare. But so are many wrongs we believe it important to forbid. What is at stake is a principle; a minimal one. It deserves minimal respect - as a matter of principle.
To boil down the fundamental value at stake here; Recall the civil rights movement. Recall not only its invocation of national ideals, but also its evocation of nationhood. Recall the famous photograph of the Selma marchers carrying flags of the United States. The question is: Will the next Martin Luther King have available to him or her a basic means of identification with all the rest of us - an embracive appeal to the bonds that, in aspiration and potential, make us one?
We are told there are other effective ways, short of an amendment, to protect the flag. Specifically, we're told (1) that Congress might do it by statute or (2) that the states might do it by enforcing laws against theft, vandalism or "fighting words" already on the books or (3) that the "voluntary feelings" of the people and "counter-speech" condemning flag desecration now provide plenty of security for this unique symbol. In fact, none of these are effective alternatives.
Reliance on yet another federal statute would be reliance on a mirage - a proven mirage. In 1990, after Johnson, the Congress tried this approach. And swiftly, it was slapped down by a 5-4 vote on the Supreme Court in Eichman. There is absolutely no reason to believe that the Court, as now constituted, would reverse itself. In 1995, the Congress accepted this as a fact of life. I trust it is not any more inclined to indulge in fantasy in 1997.
Reliance on enforcement of laws against theft, vandalism and "fighting words" would be hardly less fantastic. Most of the American flags that are physically desecrated are, after all, the property of the desecrators. Thus theft and vandalism are not involved. And "fighting words" prosecutions have long been sharply narrowed by the courts to cases of face-to-face challenges to fisticuffs between specific individuals. Most instances of physical desecration - the ripping of a flag in the rotunda of the Michigan State Capitol in January 1997 was a typical example - involve no such challenge. What's more, reliance on laws like these wouldn't simply be futile. By treating the flag as just another piece of cloth, it would miss the point as well.
The point, of course, is to ensure respect for this unique symbol of our aspiration to unity-despite-difference. To be sure, this respect ought to flourish in the "voluntary feelings" of the people. But that doesn't mean that a law protecting the flag is not now needed. Who can doubt that, very often, legal proscriptions do in fact influence the "voluntary feelings" of the people? (Think for a moment, of the civil rights laws.) Who can doubt that, often, they both express and work to maintain those feelings?
Why isn't it enough, though, to critize the desecrators or fly the flag ourselves? Ordinarily, I agree, "counter-speech" is the best response. But this situation is unique, just as the flag is unique. Once it is permissible not just to heap verbal contempt on the flag, but also to burn it, rip it, and smear it with excrement - once such behavior has been specifically protected in law by the Supreme Court - then the flag is already decaying as the symbol of our aspiration to unity underlying freedom. The flag we fly in response is no longer the same thing. We are told, again and again, that someone can desecrate "a" flag but not "the" flag. To that, I simply say, Untrue. This is precisely the way that general symbols like general values are trashed, particular step by particular step. This is the way, imperceptibly, that commitments and ideals are lost.
What are the risks, if any, of proposing to amend the Constitution this way? All kinds of fears have been stirred up. I'll comment on two. First, I'll address some rather specific fears. Would the proposal "amend" - or "desecrate" - the First Amendment? Then, I'll turn to more generic fears: Would it upset the "delicate balance" of the Constitution as a whole?
The proposal would NOT "amend the First Amendment." Rather, each amendment would be interpreted in light of the other - much as is the case with the guaranties of Freedom of Speech and Equal Protection of the Laws. When the Fourteenth Amendment was proposed, the argument could have been made that congressional power to enforce the Equal Protection Clause might be used to undermine the First Amendment. The courts have seemed able, however, to harmonize the two. The same would be true here. Courts would interpret "physical desecration" and "flag of the United States" in light of general values of free speech. Experience justifies this much confidence in our judicial system.
But, we're asked, is "harmonization" possible? If the principles invoked in Johnson and Eichman to protect flag desecration were rooted in established lines of free speech argument - as they were - how could an amendment correcting those decisions, returning the law to the prevailing interpretation of the preceding two centuries, coexist with "the First Amendment?"
First, its important to keep in mind that free speech law has within it multiple, often competing lines of argument. The four dissenters in Johnson and Eichman - no less than their five colleagues - invoked principles that were rooted in established arguments about the meaning of freedom of speech. Second, even if the general principles invoked by the majority are admirable in general - as I believe they are - that doesn't mean they were applied properly. That is, we may agree that government may not impose sanctions to "take sides" for or against specific "points of view." Thus, third, the proposed amendment poses no fundamental challenge to the majority's principles. It simply affirms that the flag is SUI GENERIS as the unique symbol of our aspiration to national unity, an aspiration that (as I've read) nurtures - rather than undermines - freedom of speech that is "robust and wide-open."
The proposed amendment is not intended to - and does not - discriminate against specific "messages." Those who desecrate the flag may be doing so to communicate any number of messages. They may be saying that government is doing too much - or too little - about a particular problem. They may be burning the flag to protest the views of non-governmental groups, even to support efforts of the government to squash those groups. Or they may simply be trashing the flag to get media attention. Laws enacted under the proposed amendment would apply to all such activity, whatever the specific "message." One, and only one, mode of expression could be regulated: "desecration" of the flag. And regulation could extend no farther than a ban on one, and only one, extreme instance of it: "Physical" desecration.
One objection remains. It involves "desecration." Would this word, evoking profound respect and even sacredness, itself "desecrate" the Constitution? Those who put the objection this way defeat themselves, of course. If the Constitution as a whole is "sacred", as they suggest, then there is no text in which reference to "desecration" of the symbol of the nationhood that undergirds it would be more at home. Beyond the play on words, however, it's useful to keep in mind that this word - like any number of others in the constitutional text - is a term of art. It has no religious connotation. The Constitution of Massachusetts, for instance, provides that the right to jury trial "must be held sacred," and no one reads that as a theological mandate. The question for courts interpreting the proposed amendment would be: What sorts of physical treatment of the flag are so grossly contemptuous of it as to count as "desecration?" This is the type of question - raising issues of fact and degree, context and intent - that they resolve year in and year out, under practically every other constitutional provision.
There is, then, nothing radical about this proposed amendment. What hides its moderation may simply be a generic fear of any proposed constitutional amendment - or, at least, of any that is driven by wide public support. Opponents of a flag amendment evoke this fear, suggesting the "delicate balance" of the Constitution is in jeopardy. In the ways they make the suggestion, however, they reveal it to be misleading, even perverse.
They tell us that the Constitution is perfect. Or they talk of its fragility. The document, they imply, is too fine or too delicate to amend. But a part of it's "perfection" must be Article V, which provides for its amendment. It has, after all, been amended many times. (The framers' generation added ten amendments in one swoop.) And, far from proving fragile, it has proved to have extraordinary tensile strength, enduring by adapting to circumstances - changing and unforeseen - just as, long ago, Chief Justice John Marshall promised it would.
Yet, they tell us, any proposed constitutional language will have unintended consequences - unless we pin down, right now and forever, every jot and title of its meaning. This is sometimes an effective strategy of opposition. It was deployed, for example, against the Equal Rights Amendment, nickled an dimed to death in disputes over hypothetical deatils. The proposed flag amendment is far narrower and, so, far less vulnerable to such opposition. But, those who supported the ERA - and deplored the strategy then - should be loath to use it now. It is, in any event, deeply misguided. For if (as John Marshall taught us), the genius of our Constitution is to endure through adaptation, then any pretense to fix its precise meaning, once and for all, is futile. Few constitutional provisions - few of those in the Bill of Rights, for instance - could pass such a test. Hence, the lesson of our history is: Leave future details of application to the future; trust our judicial system; and stick, for the moment, to issues of fundamental principle.
When all is said, opponents are left with one line of argument. You ought not, they say, "fool with" the Constitution. You should not "tinker" or "fiddle" with it. You must not "trivialize" it. Here is what's fascinating: Such verbs are rarely used to describe judicial interpretations or lawyers' interpretations or academic interpretations of the Constitution. They're reserved, instead, for the process of amendment prescribed by Article V. They're reserved, especially, for amendments proposed not by "experts", but by large numbers of ordinary citizens and their representatives. The disdain in such language is clear. It is, I believe, a disdain for the processes of democracy and for the ordinary people who take part in them. The implication is that the Constitution - which establishes processes for its own amendment - is too elevated, too refined, to be touched by those very processes.
In the end, that's what is at stake here: Our flag symbolizes our nation. It is a nation defined not by any shared ethnicity, but by a political practice, the practice of popular sovereignty, of democracy. It is through democracy that our law, including constitutional law, is made. It is through democracy that our liberties are nurtured and exercised and guaranteed. It is through democracy that we are bonded to one another. Shouldn't the people be authorized, if they choose, to require a very minimal respect for that one symbol, that one value, that one aspiration?