THE RULING was swift but not surprising. Less than a year after the Supreme Court struck down a flag-burning statute in Texas, it has, with similar reasoning, declared unconstitutional a federal law attempting to criminalize the same kind of conduct. Not a single justice changed position. Yesterday the same five voted against this limitation on political protest; the same four would have allowed it.
As far as the judiciary is concerned, flag-burning is a closed case. However much one may abhor the willful destruction of the national symbol, it is a form of political speech, and as such it is protected by the First Amendment.
For politicians, however, it is not a closed case. After last year's flag decision there was a rush to amend the Constitution that abated only when the statute was passed. Now that the law has been invalidated, the assault on the First Amendment is likely to be renewed.
There is still hope for a more rational response, however, if only legislators take time to notice that hardly anyone is following their parade. Last summer, poll takers found an initial surge of resentment against the court for what was perceived to be an assault on national values. President Bush, who initially counseled restraint and compliance with the court decree, confused the debate by reversing himself and jumping on the amendment bandwagon. But after a couple of months of sound and fury, countered by a few thoughtful speeches in Congress, public demand for a constitutional amendment began to diminish. It is now clear that there is no great national groundswell for changing the charter, even to protect the flag.
Rep. Robert Michel, in response to Monday's court action, predicted quick adoption of an amendment, asking, "Who wants to be against the flag, mother and apple pie?" But one needn't be against the flag to see the wisdom of protecting an unpopular form of political speech. Not a single word of the First Amendment has been changed since it was adopted almost 200 years ago. Americans can tolerate all kinds of nonviolent protest, criticism of the government and demonstrations of discontent. What a free society cannot abide is a set of government regulations allowing some kinds of speech and proscribing others. The First Amendment, tested for two centuries, is in fine condition and needs no restructuring to allow the prosecution of dissent.