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A (Flag) Burning Issue

By Jonathan S. Cohn

REP. Patricia Schroeder (D-Colo.) said last year that debating flag burning laws is like "chasing a gnat around the light bulb as the planet is burning down." If a few key legislators have their way, Congress this summer is going to try chasing that gnat all over again--and this time, it may actually catch it.

If it does, however, it will have done more than eliminate a political nuisance. A constitutional amendment to protect the flag would set a precedent for restricting speech that could seriously compromise the First Amendment.

AFTER last June's controversial Texas v. Johnson decision, in which the Supreme Court struck down a Texas law that forbade "casting contempt" on the American flag, President Bush and a majority of Congress responded to the public outcry by calling for a constitutional amendment to protect the flag.

Ultimately, cooler heads prevailed. Many legislators who opposed the Court's decision were nonetheless reluctant to tinker with the Constitution.

Instead, they pushed through the 1989 Flag Protection Act, a law cleverly worded to escape judicial scrutiny. The new law was nearly identical to the Texas statute the Court had just struck down, except that it banned all attempts to harm or mutilate the flag, regardless of whether they were intended to "cast contempt" or not.

Supporters of the statute claimed that the law was not directed at silencing any particular point of view, and was thus not restricting the right to free speech. Numerous experts--Harvard's Laurence H. Tribe '62 among them--said the Court would probably uphold the law.

BUT as Tribe himself acknowledges, laws designed to stifle a particular message--even if content neutral on their face--are neither just nor constitutional.

For instance, laws against picketing may not discriminate in their wording against any particular kind of picketing. But if those same laws are clearly meant to silence one type of picketing--union picketing, for instance--then they are not constitutional.

It is still unclear how the Court will rule on the new statute, which was brought before it earlier this month. Justice Harry Blackmun, at least, has indicated that the new wording might change his vote, which would tip the five to four decision the other way.

But given the legislative history of the 1989 flag law, which shows that Congress intends to silence "anti-American" sentiment, the justices probably will not change their minds. Justice Antonia Scalia indicated as much in the oral arguments last Monday.

SO CONGRESS, ready to sieze the gnat, has begun to gear up for another round of flag burning debate. Last week, Sen. Joseph Biden (D-Del.), chair of the Senate Judiciary Committee, vowed to introduce a constitutional amendment to protect the flag if the Court overturns the 1989 flag law.

Biden says there is a clear majority in Congress backing such an amendment, and he's probably right. An anti-flag burning amendment fell 15 votes short last year, but most of those opposing it did so only because they wanted to test the constitutionality of a new statute before they amended the Constitution.

If that law fails to pass muster, many of opponents of the amendment will probably change their minds. And given the political bashing Democrats took on the "patriotism" issue in 1988, it is unlikely that many will stand up to the flag movement this summer--especially with congressional elections only months away.

Biden admits that "The nation will not fall because a flag is burned." So why press the issue? Congress has hundreds of more important issues to worry about, and should not be wasting its time on what will surely prove to be a controversial constitutional amendment.

BUT IF preventing flag burning is not a vital problem for the nation, preventing constitutional amendments to the First Amendment still is. Not that the Court has ever interpreted the First Amendment as absolute--it has, for instance, upheld laws proscribing seditious libel and speech that represents a "clear and present danger."

But such interpreations were always based on a Constitution that was--in its wording--absolute. Carving out a constitutional exception to that rule would allow justices much greater leeway in restricting free speech in the future.

For instance, if the flag is protected because it is a symbol "vital to all Americans," then what is to prevent Congress from protecting other symbols "vital to all Americans?" Maybe Congress will protect the Liberty Bell, and then the Statue of Liberty, and then portraits of George Washington, and then portraits of Ronald Reagan.

It is unlikely, but still possible that a future generation of justices would interpret the amendment so broadly to justify such blatant restrictions on free speech.

Fortunately, at least a few members of Congress seem willing to fight off their fellow flag wavers. Both Rep. Don Edwards (D-Calif.), head of the House constitutional rights subcommittee, and House Speaker Thomas Foley (D-Wash.) say they oppose such amendments.

If successful, Edwards and Foley will save the nation a lot of grief, not to mention valuable time. Congress, after all, has much bigger gnats to chase.

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