June 27, 2006

On flag burning

So it looks like the Senate will vote on a Constitutional amendment that would ban the desecration of the American flag. And it looks like it's never been closer to passing. See the NY Times for coverage and the LA Times for an editorial.These are some preliminary thoughts. I'll have a larger post on this later in the week.Here's the New York Times quoting Arlen Specter:"Senator Arlen Specter, Republican of Pennsylvania and chairman of the committee, said the amendment was not meant to alter the Bill of Rights but to right an incorrect decision by the Supreme Court."Mr. Specter said flag burning should not be considered speech protected by the First Amendment, but an action 'designed to antagonize, designed to hurt,' not 'designed to persuade.'Specter seems to hang his ideological hat on the idea that flag burning is not protected under the first amendment because it is not designed to persuade. I don't accept that premise, but for the sake of argument, let's agree that flag burning is not designed to persuade. I would ask the following question: Since when has protecting speech been conditional on its purpose or intent?I understand that the Supreme Court has identified cases in which speech like slander, obscenity, and pornography has "no social value", and therefore, is not protected under the first amendment. But is burning a flag an analogous situation?I consider burning a flag offensive, but I believe that political speech, no matter how offensive it is, is protected by our Constitution. The First Amendment is intended to be strong enough to protect speech that the vast majority of the people hate.As Patrick Leahy put it on the Senate floor: "The First Amendment never needs defending when it comes to popular speech," the six-term Vermont senator said. "It's when it comes to unpopular speech that it needs defending." (Via CNN)More on this later...