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Correction to This Article
The 1989 Supreme Court decision on flag burning was not unanimous, as stated in a June 15 op-ed piece. The case was decided by a 5 to 4 vote.
Our Flag and Our Freedom

By Bob Kerrey
Thursday, June 15, 2006

With campaigns at full tilt and the Fourth of July just around the corner, the Senate's new priority is to debate and vote on yet another resolution to amend our remarkable Constitution. This time it's an amendment that would allow Congress to prohibit a form of protest that a large majority of Americans do not like: the burning or desecration of the American flag. Since 1989, when the Supreme Court decided unanimously and correctly that these rare, unpleasant demonstrations are expressions of speech and therefore protected by the First Amendment, there have been many such attempts. Fortunately, all have failed.

Unfortunately, enthusiasm for this amendment appears to have grown even as flag-burning incidents have vanished as a means of political protest. The last time I saw an image of the U.S. flag being desecrated in this way was nearly 20 years ago, when the court issued its decision. Thus this amendment -- never appropriate in the oldest democracy on earth -- has become even less necessary. But necessity is not always the mother of legislation.

In defense of speech I do not like, I recall a ceremony I have come to love: a military funeral. The finest of all is conducted at Arlington National Cemetery. At graveside, an honor guard holds the American flag while taps are played as a final farewell. The guards then fold the flag into a triangle and deliver it to the next of kin.

It is as if the flag becomes the fallen. In the hands of a widow or mother it is much more than a symbol of the nation. At that moment the American flag is a sacred object that holds the sweet memory of a life given to a higher cause. Or so it seems to me each time I am witness to these hallowed events.

To others the ceremony may mean something entirely different. I recall vividly one such situation: A mother of a friend who was killed in Vietnam recoiled when the flag was offered to her. She would not take it. In her heart the American flag had become a symbol of dishonor, treachery and betrayal. At the time, and perhaps to her dying day, she wanted nothing to do with it.

If our First Amendment is altered to permit laws to be passed prohibiting flag desecration, would we like to see our police powers used to arrest an angry mother who burns a flag? Or a brother in arms whose disillusionment leads him to defile this symbol of the nation? I hope the answer is no. I hope we are strong enough to tolerate such rare and wrenching moments. I hope our desire for calm and quiet does not make it a crime for any to demonstrate in such a fashion. In truth, if I know anything about the spirit of our compatriots, some Americans might even choose to burn their flag in protest of such a law.

No doubt the sponsors and advocates of this amendment mean well. They believe it is a reasonable and small sacrifice of our freedoms. They believe no serious consequence will come of this change.

No doubt, too, some of the increasing interest in limiting free speech is a response to the Sept. 11 attacks on the United States. It was a remarkable moment, when the hearts of most of us filled with a kind of pure patriotism we had never felt before. It was a patriotism that bound liberty to equality and fraternity. It was a patriotism that brought us together, friend and stranger alike. We discovered heroes who inspired us. No longer did we say, "It's good to see you," and not mean it.

Most impressive to me was that the "we" included men and women of many nations, every religion and every ethnic group. The "we" was global. The patriotism we felt extended beyond our boundaries and beyond the cramped spaces of ritual nationalistic fervor. We understood that the vulnerability of our freedom bound us together more than any symbol or slogan can. Millions of Americans, then and now, proudly flew their flags because they wanted to, not because any law told them to.

All the more reason, then, for patriotism to turn aside the understandable impulse to protect our flag by degrading the constitutional freedoms for which it stands. Real patriotism cannot be coerced. Our freedom to speak was attacked -- not our flag. The former, not the latter, needs the protection of our Constitution and our laws.

The writer, a former Democratic senator from Nebraska, is president of the New School, a university in New York.

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