Flag Burning and Free Speech

Is It Better to Desecrate the Flag or the Constitution?

Flag burning is a harmless form of protest. Flag burning is not revolutionary. In a flag burning demonstration, lives are not at risk, nor is public property, nor even the public peace. Flags don't make much noise when they burn. They pollute the air a little bit. Burning the flag does speak with a loud voice, however. Burning the flag speaks to values, particularly the value of the flag and the condition of the republic.

Burning the flag as a pastime got a big boost during the 1988 presidential election when the Republican candidate campaigned on a platform with a solid plank of patriotism. He excoriated the Democratic candidate for vetoing a bill, in the Massachusetts legislature, that would have made reciting the Pledge of Allegiance mandatory in Massachusetts public schools. The nation does not compel individuals to risk their lives in combat if it is contrary to their religious belief, even when the nation is in dire peril. Why should we compel individuals to display patriotism of a certain kind when the nation is in no danger?

Authoritarian governments all over the world are falling and we support an authoritarian government in China. World alliances are changing. The threat of war is receding all over the world. The time demands cool thinking on the part of intelligent, mature statesmen and women yet we are submerged in a mass of yahooism about saying the Pledge of Allegiance and burning the flag.

HOW can one candidate for the office of president impugn the character of the opposing candidate by implying disloyalty and unpatriotic behavior? One can see disagreeing on policy positions, partitioning of the budget between social and defense spending etc. But to basically say that the candidate of one party is not a loyal American insults the entire selection process. If as a nation we can't find two loyal candidates, we might as well have the Pope appoint the president.

The starting conditions for our nation were atrocious. We had a vast continent to settle, but one that was full of Indians. We had slaves when the rest of the world was giving them up. We had a polyglot population of nationalities and conditions of servitude. But we had the good fortune to have some Founding Fathers with vision. It's a good thing we had them to start with, because the conditions for men and women like them to be effective today are minimal or nonexistent. Thank God the Founding Fathers had to struggle with only "their intelligence—their ability to speak, read, write and listen. If they had had even radio, the Constitution would be mashed potatoes, and if they had had television, they would never have gotten one written.

Why is the flag burning issue important? It is not an intellectual issue. There is nothing to think about. Burning a flag is a means of expression, a harmless way of telling the political candidates and elected officials of the republic that they are, in the minds of the flag burners, subverting the heritage of the Founding Fathers. What is so dastardly about reminding the candidates and elected officials of this republic they are doing a bum job? The flag burners, far from being unpatriotic, are telling the candidates and elected officials of the republic that are using patriotism for political purposes.

Flag burning could be considered a purification ritual. The protesters find the flag has been desecrated by being used for partisan political purposes. The flag burners burn a flag as an act of purifying the flag. They are not destroying the flag. They are using a sacrificial flag to purify the concept of flag. And the scenario is playing out exactly the way.the flag burners intended.

The target of the flag burners, the flag wavers, are now accusing the flag burners of being unpatriotic, when in fact the flag burners were accusing the flag wavers of being phony patriots. The political operatives of the flag wavers can't wait to get into the next election because they believe the flag burning issue is of such great emotional consequence that it will produce very positive results for the flag wavers.

Who can find a threat to the republic in this? Admittedly it's important because the whole government is going to stop while the matter is resolved.

The flag wavers are on the constitutional amendment course. The flag burners, on the other hand, are home watching TV while the majority party is having to figure out how to save the Constitution while appearing to be in favor of not amending it, and how to prove that its members really are loyal Americans (maybe even similar to the kind you find in a local veterans' club) without acting soft on communism (of which there isn't any in Europe), or soft on defense (which will collapse of its own weight).

Radio and television changed the character of politics and political campaigns. Before radio the candidates had to rely on their own voices and the voices of their surrogates. They could debate, use broadsides, and spread rumors, but the audience was in the hundreds and thousands not the millions. When radio appeared it offered the obviously marvelous opportunity for the candidates to be heard by virtually the entire electorate. Political speeches became a big thing in national politics. However—without going into the history of the electronic media—it is plain to all that, since the advent of television, political campaigning has degenerated to the level of jingoistic advertising.

As we now live in a world of thirty-second sound bites, the flag waving issue is tailor-made. The flag can be waved for ten, twenty, thirty, forty, fifty, or even sixty seconds. It would be tough to get it into a three minute spot because in three minutes there would be time to say something. To give an hour-long address on the flag and patriotism would be maudlin.

Try to imagine a thirty-second sound bite explaining the First Amendment to the Constitution. Would it be possible to explain freedom of speech and expression in thirty seconds? Hardly so. That's why the flag burners cannot reply. They said what they were going to say when they burned the flag. The defenders of free speech can't answer because it doesn't fit into a thirty-second sound bite. One could profitably spend a whole hour or a four-day seminar on the First Amendment and not say it all. I have a book on the First Amendment, (The First Amendment, The Legacy of George Mason, Shumate, T. Daniel, ed. The George Mason University Press, Fairfax, VA, 1987). Books on the rest of the nine amendments of the Bill of Rights and the Constitution itself fill libraries. How can an emotional demagogic thirty-second outburst be answered in a reasoned thirty-second reply? It's no contest, which is why the thirty seconds of emotion is so effective.

In 1988, when the Republican candidate was way behind in the polls, the Chairman of the Republican Party convened a focus group of supporters known to be loyal to the Democratic candidate and exposed them to material calculated to change their minds about their candidate. The items that caused them to shift their loyalty became the grist for the thirty-second sound bites. The fact that the Republican candidate was part of an administration, that released 14,000 Federal prisoners on furloughs, some of whom committed crimes, even murder, on their release, did not reduce the effectiveness of the Willy Horton thirty-second sound bite. Nothing of significance intellectually can be transferred in a thirty-second sound bite, but in thirty seconds, fear and racism can be emotionally portrayed and emotionally transferred.

Modern television practice has caused the degeneration of political dialogue. Attack ads, negative campaigning, appeals to racism, bigotry, and patriotism have replaced reasoned language in the political dialogue of our time. It's a real shame. We used to have candidates who could give a whole one hour speech without a teleprompter or, three-by-five-cards. We used to have learned men run for office. We even had a university president become president of the United States. Good candidates now shun politics, and politics itself has degenerated to the point where the modern campaign keeps people away from the polls. The percentage of eligible people voting is becoming smaller with each of these mad dog campaigns.

What is at stake? The republic is at stake. The issue today is the flag. The issue today and yesterday was abortion, and the day before, it was school prayer. Emotional issues, brought to the public's attention when our nation has really serious problems, like Japan eating us alive economically, and Europe getting up a parade in which we may he left out. We have a contrived debt that is undermining the basic foundation of the republic. We are losing economic hegemony to the point where we may not get it back in our lifetime, if ever. We have had the Iran Contra scandal, the Pentagon procurement scandals, the S&L catastrophe, the failure of HUD, the failure of the FHA loan program, and the failure of Federally backed pension funds. In all these cases, elected officials, of the republic who were supposed to be fiscally conservative violated their oath of office. And the people who brought all this national catastrophe on us are now asking us to consider the flag—and asking, "Isn't it terrible that some rowdies would cast aspersions on this great nation and its leaders by burning the flag?" Meanwhile, the flag wavers are giving away the farm.

I consider the Bill of Rights unalienable (the unalienable right to the Constitutional guarantees of citizenship). I can see adding more items to the Bill of Rights. It would be a sign of growing maturity and increasing intelligence. I cannot see reducing these rights one whit. I would rather we got rid of the flag than change the Bill of Rights.

The people who won our freedom did not die for the flag these flag burners burned. They died for one with 13 stars in a ring on a field of blue, with 13 stripes. The men and women who died in WW I died for a flag that had 48 stars and stripes. The men and women in Vietnam did not fight and die for the flag of WW I and WW II as their flag had 50 stars. The history of the flag indicates that we change the flag every few years. The only flag today that is the official flag is the one with 50 stars; all the rest are historic art work.

The flag amendment is a trivial issue. If we really amend the Constitution to spare the flag from alleged desecration, thereby diminishing the freedom of speech that is aimed at criticizing candidates and elected officials of the republic, we diminish and trivialize the Constitution and the republic. The criticized officials are not worth it. No elected official or candidate should be spared criticism at the expense of the Constitution. If burning copies of the Constitution itself were to arouse ire in elected officials and candidates, then we should burn copies of the Constitution. The Constitution can not be wrapped in the flag and then diminished because some one criticizes a presidential candidate campaigning With chauvinistic patriotism.

The flag problem is not that tough to solve. Here are some ways to handle the problem.

• Since old flags, by law, are to be disposed of by burning, rag dealers could handle flags ready for disposal as protest flags. The flag burners could have a prepared sign, identifying them as the flag disposal squad, and get on with their protest.

• Congress could pass a law mandating that henceforth the flag should be made only of nonflammable material. That should do it. If the flag won't burn it cannot be used to criticize flag waving officials of the republic. If it does burn, it cannot be the official flag since Congress will have defined the official flag as non-burnable.

• Flags for the sole purpose of burning could be manufactured. The flags could come in several sizes and grades of combustibleness. For instance, a pure cotton flag used for burning would most likely, seem like the real thing, with a nice smell, bluish smoke, not too much ash. Another grade could be mildly treated with cellulose nitrate and have a nice fuse. Light the fuse, move the flag smartly away on its pole and watch a fairly spectacular fire. On a more deluxe model, the stars and stripes could be treated separately so that they seemed to burn independently of each other and with different colors. Quite a nice spectacle.

• Then there could be a flag that used the principal incendiary chemicals that caused a mere frame work of wire to burst spontaneously into a burning flag. This one, while producing a spectacular fire could actually be interpreted as celebrating the flag since it would look suspiciously like the burning flag in the 4th of July fireworks display and it may give the wrong message so one would have to be careful using it. None of these alternatives would require an amendment to the Constitution limiting the unalienable rights of the citizen sovereign. A republic is defined as a government where the supreme power is vested in the people and their elected representatives. Free speech and freedom of expression are the bedrock of our republican form of government. That is why it is in the First Amendment. In a republic as large and as complex as ours, people and voices tend to get lost in the shuffle. Politicians tend to think that because they speak for a majority they speak for all. The president may think he speaks for the people, but he was elected by an invisible electoral college, not the people. In our form of government all forms of expression have to be encouraged, since there is no systematic way of determining the will of individual people who all have the right to be heard. The citizens sovereign are the quanta of our republic and they have the right to be heard as individuals, not as averages.

Can a citizen sovereign commit a crime while engaging in free speech? The U. S. Supreme Court says only if the speaker endangers the lives of others like shouting, "Fire!" in a crowded theater. We should think twice or twenty times before we engage in activities that diminish the supreme power that is vested in the people—the citizens sovereign of this great republic

...Ted Sudia...

© Copyright 1991
Institute for domestic Tranquility