Selected Skirmishes: Let It Burn

Back to the future on flags


The very first "Selected Skirmishes" column ever appearing in this fine journal of opinion was titled "The Last Temptation for Censorship" (October 1989). While the median REASON reader surely remembers that stellar piece of literary penmanship, and more than a few of you have likely downloaded a copy to re-read in recent days, the main topic was President George Bush's maniacal pre-occupation with passage of a federal flag-burning statute.

The tagline for that column announced that I would begin a monthly column on the back page of REASON. And so I have. It's been a bit of work, juggling writing chores with my day job, but I figured: Just hang onto the column long enough to cover each of the recurring themes of Modern Life–and then recycle. Like the TV shows: A few years on the network and presto! Syndication reruns.

I am today delighted to see my vision working precisely as planned, as we hurtle back to the future of that burning issue: federal sanctions for Old Glory immolators. The idiotic campaign has now played out in technicolor. President Bush, desperate to latch on to a commitment, shamefully bullied Congress into making flag burning a federal crime. Mr. Bush, so courageous in standing up to flag burners, mano a mano, was soon to disintegrate like a Mike Tyson sparring partner when the Democratic congressional leadership told him the time had come to abandon his "no new taxes" pledge.

As a strategy in the war of ideas, it is supremely clever to permit flag burning. Those Mother Jones subscribers who are tricked into lighting up demonstrate the greatness of The American Way with sparkle and flash. That a document written 200-plus years previous could constrain some macho police chief hepped up on press releases from prosecuting some hapless ne'er-do-wells for attempting to make a political point says volumes about the beautiful place we call America. Isn't it nice to know that people, no matter how odious or sophomoric, have rights to express themselves which trump those of the police? The legislature? The politicians?

Conservatives, rappelling down Constitution Mountain on a stake driven by Robert Bork, say they aren't regulating speech by outlawing flag burning, just conduct. This is an argument so silly I'll bet the political science majors at Liberty University are giggling about it. The act of burning red, white, and blue cotton fabric will not be a crime–unless it is so configured in a pattern denoting the U.S. flag. Just action, not speech? Tee-hee, tee-hee, tee-hee.

No Republican sponsor has, in fact offered up the Cloth Burning Amendment to the Bill of Rights (although some liberal Democrats are said to be talking with environmental groups to see if such a law might be enacted and broadly expanded to encompass all industrial combustion). Republicans seem concerned that, having dealt with substantive issues through their Contract and the effort to produce a balanced budget, they now face a pandering deficit with the Democratic Party. The flag-burning amendment would be a huge step forward on this score, nullifying precious freedoms on behalf of a narrow constituency of activist whiners.

That the conservatives can put such an amendment forward without a smirk, however, is testimony to their dedication to the cause. From whom have we heard for five years about political correctness? These weekend warriors on civil liberties have posed as friends of open and robust debate–but torch a patriotic icon and we'll incarcerate you, even if we have to overturn James Madison to do it.

The political urge to censor can overpower principle, as the tawdry congressional action this year to prosecute computer network providers for Internet porn also shows. The proposed law is the cyberspace equivalent of jailing traffic cops for allowing (unindicted) criminals to drive through town. But, as telecommunications policy expert Henry Geller said, "Who is going to vote for indecency?" Others noted that many senators backed the measure confident that the courts would overrule it.

That's what the Congress did last time on flag burning. Struck down by the Supreme Court, a new flag-burning law was enacted by Congress to again be struck down by the Supreme Court. (Hey, this legislator gig is pretty fun work, if you can get it.) That's why we now need to substantially redefine the First Amendment to the U.S. Constitution, which assumed that a blanket prohibition against Congress regulating any speech was necessary to keep opportunistic politicians quartered, off to the side of controversial debates which they would inevitably try to rig in favor of their own (short-sighted) interests.

The pseudo-sophisticated arguments of the William Bennetts–that they are enforcing a measure of respect for our civic icons–reveals a fundamental hostility to the most civilized of all our American treasures: the Bill of Rights. Like the flag burner who proves the reverse of what he wishes by simply striking a match, the conservatives veto the magic of America by striking an ugly constitutional pose.

Contributing Editor Thomas W. Hazlett (hazlett@primal,ucdavis.edu) teaches economics and public policy at the University of California at Davis.