I think this cartoon perfectly captures the flag burning debate. It's human nature that as soon as someone says you can't do something, that's when everyone wants to do it. The current amendment seeks to enshrine in our Constitution the ability to outlaw a very specific form of political protest that is scarcely more common of an activity than machete juggling. But I believe this is an important symbolic issue with much larger implications, because the proposed amendment cuts back on the First Amendment's right to free speech.
How can I possibly say that, you ask? How can I possibly equate the act of burning a flag with "speech"? Well, I'm certainly in good company with this position. The Supreme Court has ruled repeatedly that nonverbal forms of communication do have some protection under the First Amendment. In the 1931 case Stromberg v. California, the Court struck down a statute that prevented people from displaying red flags in support of Communism, and in the 1969 case Tinker v. Des Moines Independent School District, the Court ruled against a school that prohibited its students from wearing an armband in protest against the Vietnam War. It’s true that lawmakers can put more restrictions on nonverbal communication than on actual speech and writing, but one thing they cannot do is outlaw an activity purely because they oppose the message that activity is intended to express.
This point is lost on Robert H. Bork. According to Bork, banning flag burning isn't outlawing an offensive idea; it's outlawing an offensive "method of expression." For example, says Bork, we are certainly entitled to "stop a political speech made from a sound truck at 2:00 AM, or prosecute a protest against sodomy laws where demonstrators engage in the practice in public" ("Waiving the Flag," Omni, Oct. 1990, p. 10).
But in both of those examples, the reason both actions are prohibited has nothing to do with the messages being expressed. If you go into a quiet neighborhood in the middle of the night and give a speech blaring from a sound truck, you'll be arrested no matter what you say. You don't even have to be saying anything; you could howl at the moon and you'd still be violating the same law.
The laws prohibiting flag burning are clearly in a different category. For example, the Texas statute which the Supreme Court struck down in 1989 actually permitted the burning of an American flag if the purpose was only to dispose of a torn or dirty flag. Obviously, the law was directed specifically at people who used flag burning to express a message of anger and contempt toward the American government.
Similarly, the proposed amendment isn't against the destruction of an American flag; it's against the "physical desecration" of the flag. What does it mean to desecrate a flag? The dictionary won't help me on this; they all define the word desecrate as strictly a religious term that you might apply to the destruction of objects found in a church or synagogue, certainly not to a secular object like an American flag. Congress, however, has defined the word as "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action."
In other words, the amendment, like the Texas law, is not directed toward the act of flag burning. It is directed toward people who use the act to express a message of disrespect. Not that this should be surprising. There's nothing about the act of setting a flag on fire that's inherently offensive. Once you start talking about the person's intent--what's in his mind--it becomes abundantly clear that it's not what he's doing that offends, it's what he's communicating.
