On protecting old glory

Now more than ever, the American flag holds a special place in the hearts of U.S. citizens. In the weeks that have followed Sept. 11, we Americans have tightened our embrace of Old Glory as the symbol of our national ideals. As happy as I am to see Americans united in this way, I fear that our Congressional leaders, in an attempt to appear more patriotic themselves, will exploit the current wave of patriotic feeling by attempting to amend the Constitution to prohibit flag desecration (an effort that nearly succeeded, sans a national crisis, in 1995 and again in 2000).

With or without a Constitutional amendment, it is plain to see that Americans are in the process of finding a new balance between security and liberty. Since Sept. 11, most Americans have been willing to concede certain individual liberties for increased national security. That said, we must never confuse such inconveniences as longer lines at airports with infringements upon our most sacred rights: those assured us by the First Amendment.

Burning a flag in political protest is expressive conduct that deprives no one of liberty or justice; the sum total of a public flag burning is a pile of ashes and some hurt feelings. As long as differing political views do not constitute a clear and present danger, Americans must tolerate them in the name of freedom. Indeed, it is inherently undemocratic to restrict political speech, especially political protest. The Founders themselves were not exactly fervently opposed to political protest.

Amending the Bill of Rights (for the first time) in order to prohibit flag desecration would not safeguard American security; rather, it would merely prevent some unpopular opinions from participating in the marketplace of ideas. Freedom of speech is not limited to uncontroversial beliefs. And while there are many different ways to express political discontent without burning an American flag, none elicit the same emotional impact as flag burning.

A flag-desecration amendment would lead to a judicial system that prosecuted only those flag desecrations performed with contempt. After all, it is traditionally proper to burn "respectfully" a worn flag. It is not the physical act of flag desecration that the amendment would prohibit — one would never be arrested for wiping one's mouth with a napkin emblazoned with an American flag — but the spirit with which the deed took place. Such selective prosecution (the term "desecration" is highly subjective) is based upon the suppression of unpopular ideas, not the protection of the physical integrity of the flag in all circumstances.

Flag burners do not constitute a "clear and present danger" to the United States. Unless the Supreme Court becomes involved, the few annual public desecrations of these privately owned replicas go largely unnoticed; there was only one flag burning reported in the New York Times from 1982 to 1987. In that incident, Gregory Lee Johnson violated a Texas flag-desecration statute by igniting one in political protest outside of the Republican National Convention in Dallas.

Five years later in 1989, the Supreme Court heard Texas v. Johnson, in which an abnormal combination of liberal and conservative justices decided that flag burning constitutes protected speech. Justice Brennan, writing for the majority, articulated the Court's view: "We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns . . . We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Those who favor a Constitutional amendment suggest that theirs is the more patriotic argument, but an American flag 'sheltered' by a Constitutional amendment would, ironically, represent ideals cheapened by the very amendment designed to protect it. Amendment advocates also underestimate the flag's resilience, just as the terrorists underestimated our national resilience. That the flag tolerates criticism shows its true strength; Old Glory protects those who hold it in contempt.

President Bush will continue to send ground troops into Afghanistan. Some will not survive. Proponents of the amendment argue that a government that can send Americans into battle should be able to protect the flag for which they give their lives. Yet one wonders whether those brave men and women fight for the cloth of the American flag or for the ideals it represents. Justin Rockefeller is a politics major from Washington, DC. He can be reached at justinr@princeton.edu.