The Right to Offend
ONCE AGAIN, THE House of Representatives has voted to send to the states for ratification a constitutional amendment giving Congress the power to prohibit the "physical desecration" of the American flag. The vote is a ritual in the House, a political debasement that would be beneath denouncing except that the amendment might pass someday and even this year. The cooler heads who have always prevailed in the Senate are less numerous. Amendment supporters in the Senate are dangerously close to having enough votes. Only a few senators have to buckle to the intense political pressure to support this desecration of the Constitution or not show up for the vote. The flag-burning amendment will move out of the category of inane legislative posturing in which it has lurked since the Supreme Court rightly declared burning the flag to be a form of constitutionally protected speech.
Such an amendment would be offensive even if flag burning were a kind of expressive epidemic. But the problem the amendment purports to address is a fiction. When was the last time you saw someone burning a flag? If the answer is never, that's because it hardly ever happens. In fact, one of the few certain consequences of passing this amendment would be to make flag burning a fashionable form of protest.
The other effect would be to water down one of the most profound principles that the Constitution articulates: that Congress shall make no law . . . abridging the freedom of speech. The great power of this principle is that it admits no exception: not for the most odious racism or Holocaust denial, not for the most insulting criticisms of those in high office, not for cone-shaped white hoods or hammers and sickles, and not for burning or otherwise defiling the Stars and Stripes. Passing this amendment probably wouldn't create a great substantive shift in the general scope of the First Amendment's protection, but it would sap it of the idea that gives it its power: that American government does not punish even the most offensive ideas. Congress does the flag no service with such protection.