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Whats
Wrong With the Flagburning Amendment
by
Prof. Eugene Volokh, UCLA School of Law
(a version of this op-ed was published in the L.A. Times, July 18,
2001)
"Congress
shall have power to prohibit the physical desecration of the flag
of the United States, and the flying of the Confederate flag."
OK, so thats not exactly how the proposed flag protection
amendment reads -- Ive added the Confederate flag phrase.
But this little thought experiment helps show that the flag protection
amendment is a bad idea.
After all, burning the U.S. flag and flying the Confederate flag
are similar in many ways. Some people argue that flagburning shouldnt
be protected by the First Amendment because it isnt "speech."
Well, burning one flag and waving another are pretty similar on
that score. I think both are traditional terms in our political
language, and should be constitutionally protected; but if Im
wrong, then both should be unprotected.
Of course, burning the U.S. flag deeply offends many people. But
so does waving the Confederate flag, even when its done by
individuals and not by state governments. Many American boys died
defending the U.S. flag -- and many of them died fighting against
the Confederacy. Burning the U.S. flag is often an anti-American
symbol. Likewise, the Confederate flag was a symbol of treason and
rebellion against the lawful American government.
Its true that many people see the Confederate flag as not
just as a symbol of the Confederacy, and of a slave state rebellion
prompted by the election of an anti-slavery President: They also
see it as a symbol of other things, such as Southern pride. But
likewise some people burn the U.S. flag not because they hate America,
but only because they want to protest what they see as the American
governments errors. Like most symbols, flagburning and flagwaving
often mean subtly different things to different people.
So one danger of the anti-flagburning amendment is the slippery
slope. If the amendment is enacted, even without a clause for the
Confederate flag, many people will be energized to try to ban other
symbols that offend them. Think of it as "censorship envy" -- if
my neighbor gets to ban symbols he dislikes, why shouldnt
I get to do the same? This kind of misplaced desire for equality
of repression is a powerful psychological force.
Of course, its likely that the slippery slope will be resisted
here, and people will remain free to wave the Confederate flag.
But America would be even more endangered by a selective ban on
flagburning alone than by a broader ban: Such selective suppression
will bitterly divide us, rather than uniting us.
Right now, when people -- mostly blacks -- are deeply offended by
what they see as a symbol of racism and slavery, the legal system
can powerfully tell them: "Yes, you must endure this speech that
you find so offensive, but others must endure offensive speech,
too. Many Americans hate flagburning as much as you hate the Confederate
flag, but the Constitution says we all have to live with being offended:
We must fight the speech we hate through argument, not through suppression."
But what would we say when flagburning is banned but other offensive
symbols are allowed? "We in the majority get to suppress symbols
we hate, but you in the minority dont"? "Our hatred of flagburning
is reasonable but your hatred of the Confederate flag is unreasonable"?
If you were black and saw the Confederate flag as a symbol of slavery
and racism -- and millions of blacks do, whether you agree with
them or not -- would you be persuaded by these arguments? Would
you feel better about America because of them?
America is different from most other countries, and even from most
other democracies. In America, all ideologies are protected, even
those that the majority thinks are evil.
Why is this right? Because the First Amendment was drafted and interpreted
by people who intimately understood cultural, religious, and political
conflict, and who knew how calls for censorship could launch the
most bitter of culture wars.
The Amendment is a truce: "I wont try to suppress your ideas,
if you dont try to suppress mine." And the flagburning amendment
risks shattering this truce.
Eugene
Volokh teaches First Amendment law at UCLA School of Law (see http://www.law.ucla.edu/faculty/volokh),
and is the author of a forthcoming First Amendment textbook (Foundation
Press, 2001).
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