John Whitehead's Commentary
Flag Amendment Violates Free Speech
Throughout America's history, the right to express oneself has been the springboard of freedom. Indeed, the U.S. was founded on the concept of the freedoms of speech, assembly and religion.
Increasingly, however, attempts are being made to curtail these fundamental freedoms. From hate codes that punish people for their thoughts to the caging of free speech demonstrators at the Republican and Democratic National Conventions, there are those who have come to believe that free speech is something to be feared. Even the President has gotten into the act, "There ought to be limits," George W. Bush has opined, "to freedom."
Now the latest salvo against our right to free expression is coming from our own lawmakers. A proposed constitutional amendment authorizes Congress to pass laws that would prohibit "the physical desecration of the flag of the United States." On June 22, the House of Representatives overwhelmingly approved this amendment by a vote of 286-130. The Senate is set to consider the amendment within the coming days, and a very close vote is expected.
One would think that a constitutional amendment would only be prompted by a massive assault on the dignity of the flag or our country. Yet over the past five years, there have only been three dozen so-called flag desecrations in the United States. This is an infinitesimally small number, considering that the U.S. is composed of nearly 296 million people.
Since the government's interest in protecting the flag is not supported by a flood of flag burnings, what is pressing Congress to take such a dramatic measure? Could it be that the elections are drawing near? But the polls on the subject vary, showing that Americans are probably evenly divided on the issue. Whatever the reasons behind this measure, the need for an amendment to our Constitution is minimal in comparison to the implications facing our individual freedoms.
There are a number of reasons why such an amendment, which creates an incredible tension within the Constitution, should be stalled. As the Supreme Court ruled in 1989, the First Amendment protects the type of symbolic speech that occurs in such acts as flag burning when done as part of a political protest. Are we now to say that the First Amendment can be overridden because three dozen people burned a flag?
The First Amendment has worked effectively as a steam valve. Like a pressure cooker that allows steam to escape, by allowing public radical expression, ideas are allowed to be expressed. This facilitates against radicals going underground and becoming terrorists. In other words, the democratic process works best when critical discourse is allowed. Group discussion allows the airing of concerns, which in turn helps to confront them.
Censoring speech also creates resentment and resistance movements. And censorship methods often have the effect of glorifying extremist speakers. Attempts at suppression result in attention and publicity that otherwise would not have been garnered. Studies have shown that governmental attempts to censor speech, for whatever reason, often make the speech more appealing. Advocates of such regulations do not seem to realize that their attempts to suppress free expression only increase public interest and media coverage of ideas they are trying to stamp out.
The right to protest, even passive civil disobedience, has been central to the struggle of many in our society to not only gain a platform, but also to be treated equally and without discrimination. For example, during the 1960s the civil rights movement depended on free speech principles. Martin Luther King, Jr. and other civil rights champions spoke loudly and often, gathering others to support their causes. And even though King was jailed and accused of breaking the law for expressing himself, it was the principle of free speech that allowed him and others to carry their message to the nation--even to those who found their message highly offensive and threatening to their values and way of life. Lest we forget, members of the civil rights movement were not only thrown into jail, their lives were threatened and some were even murdered. Others were equated with communists, subversives and criminals by government officials.
Thus, any restraint on free speech holds the opportunity to endanger those who most need the ability to express their views. This is why Aryeh Neier, a survivor of the Jewish Holocaust, decided to defend the ACLU's decision to fight for the rights of Nazis who wanted to march in a Jewish neighborhood. Neier understood clearly that his free speech could be endangered as well. As he wrote:
If the Nazis are free to speak, they may win converts. It is possible that they will win so many adherents that they will attain the power to abolish freedom and to destroy me.... The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world's sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard.
It is obvious that the proposed flag amendment provides a platform for politicians who are seeking reelection. By supporting this amendment, politicians hope to play on the emotions of patriotic Americans who want to support our troops. However, passing such an amendment shows a disregard for the very freedoms for which our soldiers so passionately risk their lives to protect.
The flag is the most recognized and cherished symbol of our country's principles and unity. Moreover, to most U.S. citizens, including myself, its desecration is extremely offensive, disrespectful and repugnant, especially in times of war. However, the First Amendment protects expressive speech such as rare demonstrations of flag burning from governmental suppression. This freedom is just one example of the many fundamental rights that set our democracy apart from authoritarian regimes. Thus, we must give honor to our flag by protecting the freedoms which it so proudly represents.
Increasingly, however, attempts are being made to curtail these fundamental freedoms. From hate codes that punish people for their thoughts to the caging of free speech demonstrators at the Republican and Democratic National Conventions, there are those who have come to believe that free speech is something to be feared. Even the President has gotten into the act, "There ought to be limits," George W. Bush has opined, "to freedom."
Now the latest salvo against our right to free expression is coming from our own lawmakers. A proposed constitutional amendment authorizes Congress to pass laws that would prohibit "the physical desecration of the flag of the United States." On June 22, the House of Representatives overwhelmingly approved this amendment by a vote of 286-130. The Senate is set to consider the amendment within the coming days, and a very close vote is expected.
One would think that a constitutional amendment would only be prompted by a massive assault on the dignity of the flag or our country. Yet over the past five years, there have only been three dozen so-called flag desecrations in the United States. This is an infinitesimally small number, considering that the U.S. is composed of nearly 296 million people.
Since the government's interest in protecting the flag is not supported by a flood of flag burnings, what is pressing Congress to take such a dramatic measure? Could it be that the elections are drawing near? But the polls on the subject vary, showing that Americans are probably evenly divided on the issue. Whatever the reasons behind this measure, the need for an amendment to our Constitution is minimal in comparison to the implications facing our individual freedoms.
There are a number of reasons why such an amendment, which creates an incredible tension within the Constitution, should be stalled. As the Supreme Court ruled in 1989, the First Amendment protects the type of symbolic speech that occurs in such acts as flag burning when done as part of a political protest. Are we now to say that the First Amendment can be overridden because three dozen people burned a flag?
The First Amendment has worked effectively as a steam valve. Like a pressure cooker that allows steam to escape, by allowing public radical expression, ideas are allowed to be expressed. This facilitates against radicals going underground and becoming terrorists. In other words, the democratic process works best when critical discourse is allowed. Group discussion allows the airing of concerns, which in turn helps to confront them.
Censoring speech also creates resentment and resistance movements. And censorship methods often have the effect of glorifying extremist speakers. Attempts at suppression result in attention and publicity that otherwise would not have been garnered. Studies have shown that governmental attempts to censor speech, for whatever reason, often make the speech more appealing. Advocates of such regulations do not seem to realize that their attempts to suppress free expression only increase public interest and media coverage of ideas they are trying to stamp out.
The right to protest, even passive civil disobedience, has been central to the struggle of many in our society to not only gain a platform, but also to be treated equally and without discrimination. For example, during the 1960s the civil rights movement depended on free speech principles. Martin Luther King, Jr. and other civil rights champions spoke loudly and often, gathering others to support their causes. And even though King was jailed and accused of breaking the law for expressing himself, it was the principle of free speech that allowed him and others to carry their message to the nation--even to those who found their message highly offensive and threatening to their values and way of life. Lest we forget, members of the civil rights movement were not only thrown into jail, their lives were threatened and some were even murdered. Others were equated with communists, subversives and criminals by government officials.
Thus, any restraint on free speech holds the opportunity to endanger those who most need the ability to express their views. This is why Aryeh Neier, a survivor of the Jewish Holocaust, decided to defend the ACLU's decision to fight for the rights of Nazis who wanted to march in a Jewish neighborhood. Neier understood clearly that his free speech could be endangered as well. As he wrote:
If the Nazis are free to speak, they may win converts. It is possible that they will win so many adherents that they will attain the power to abolish freedom and to destroy me.... The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world's sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard.
It is obvious that the proposed flag amendment provides a platform for politicians who are seeking reelection. By supporting this amendment, politicians hope to play on the emotions of patriotic Americans who want to support our troops. However, passing such an amendment shows a disregard for the very freedoms for which our soldiers so passionately risk their lives to protect.
The flag is the most recognized and cherished symbol of our country's principles and unity. Moreover, to most U.S. citizens, including myself, its desecration is extremely offensive, disrespectful and repugnant, especially in times of war. However, the First Amendment protects expressive speech such as rare demonstrations of flag burning from governmental suppression. This freedom is just one example of the many fundamental rights that set our democracy apart from authoritarian regimes. Thus, we must give honor to our flag by protecting the freedoms which it so proudly represents.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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