No speech,however obscene or inflammatory, injures America as much as the Supreme Court does -- all nine justices -- when speaking about First Amendment protections of speech. It almost invariably miseducates the nation about the nation's premises. It has done so again, concerning flag burning.
In 1984 a protester burned a flag in Dallas to express loathing for America. Convicted under a Texas statute proscribing desecration of the flag in a way that would give offense to onlookers, he appealed to the court.
Last June the court overturned his conviction, arguing that flag-burning is "sufficiently imbued with elements of communication" to be constitutionally protected "symbolic expression," which the court erroneously considers a synonym for "speech." The court held -- it was correct about this, if only about this -- as follows: Texas intended to protect the flag as a symbol of national values; therefore by forbidding flag desecration Texas was proscribing "expression" that has a particular political content; therefore the Texas law was an unconstitutional abridgement of free speech.
Congress promptly passed the Flag Protection Act of 1989 criminalizing desecration. Protesters promptly burned flags to protest (among other things) the act. Now the Supreme Court has agreed with the lower courts, which said prosecutions would be unconstitutional. The court argued (perfunctorily, in just eight pages) that there was no constitutional difference between Congress's and Texas's laws.
The court was divided 5 to 4, but the decision is fundamentally uninteresting because the majority and the dissenters do not differ about fundamentals. All nine justices share the flaccid, false consensus about what the Founders intended by First Amendment speech protection.
Justice Brennan, a liberal, joined by liberals Marshall and Blackmun and conservatives Scalia and Kennedy, gave short shrift to the dissenters' (Stevens, joined by Rehnquist, White and O'Connor) lame contention. The dissenters argued that Congress intended to protect the flag as a national symbol but did not thereby intend to penalize the expression, through flag desecration, of particular ideas.
The dissenters argued that it is constitutional doctrine that certain methods of expression may be prohibited if the prohibition is unrelated to the ideas expressed, and if the prohibition does not interfere with alternative means of expressing those ideas and if the prohibition serves an important societal interest.
But the dissenters share the majority's mistaken belief that "symbolic expression" is tantamount to speech as the Founders understood and valued it. And the dissenters agree that Congress values protecting the flag as a symbol of nationhood. So the dissenters are left with the limp argument that such symbolism implicates no particular ideas. That is nonsense.
The entire court, and probably all of Congress, operates within the incoherent consensus about the First Amendment.
If you agree, as all nine justices do, that the amendment forbids limiting particular forms of expression to protect particular ideas -- if, that is, you agree that the Constitution forbids "establishment" of particular political ideas -- the result the court reached is logically entailed. But did the Founders mean to forbid such partiality toward particular ideas? They did not. That they did not is, we may say, self-evident.
Sufficient proof (but not the only proof) is that the Constitution guarantees the supremacy of -- "establishes," if you will, as American political orthodoxy -- certain political ideas. The Constitution forbids the establishment of a particular religion but requires the establishment of a particular form of government. It does so by guaranteeing to each state "a republican form of government" (Article IV, Section 4).
Furthermore, the First Amendment explicitly distinguishes religious speech from other kinds by proscribing "establishment" of (government partiality toward) a particular religion. Why? Walter Berns of Georgetown University argues, correctly, that the Founders believed that fundamental religious truth may be unknowable, and certainly, so far as government is concerned, there is no such thing as religious truth. But the Founders believed that fundamental political truths are not merely knowable, such truths are (as Jefferson proclaimed in the nation's primary document, the Declaration of Independence) "self-evident."
By forbidding "establishment" of religion the Constitution mandates illimitable pluralism and government impartiality among religious ideas. But the Constitution mandates agnosticism only about religious, not political, ideas. The Founders knew that a political constitution mandating agnosticism about political ideas and outcomes would be an absurdity.
The First Amendment amends a political document and takes its meaning from the context of the document's language and structure, including the proclamation of national political orthodoxy (the guarantee of a republican form of government). This is why the word "speech" should be taken seriously, not supplanted by "expression."
The Founders, sharing Aristotle's definition of man as a language-using animal, specified protection of "speech." They did so because speech is intrinsically connected with reason, the distinctive human capacity by which individuals govern themselves and communities achieve self-government.
But after many years of miseducation (in part by earlier Supreme Courts) the court is convinced of, and hence the country is committed to, this proposition: the Constitution mandates protection of any behavior that "expresses" a politically tinged attitude. Today's court cannot fathom that the Founders who wrote the First Amendment used language with a precision -- a precision born of philosophic clarity and subtlety -- that is foreign to the court.