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Trashing the Flag Weakens the Nation
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16796 |
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Section : |
CURRENT ISSUES
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9 / 1989 |
1,733 Words |
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Morton A. Kaplan
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On June 22, 1989, Justice William Brennan, speaking for the majority, asserted that the American flag may be burned if this is an expression of opinion:
The First Amendment literally forbids the abridgement only
of "speech," but we have long recognized that its
protection does not end at the written or spoken world. …
To conclude that the Government may permit only a limited
set of messages would be to enter territory having no
discernible or defensible boundaries. … The First Amendment
does not guarantee that other concepts virtually sacred to
our nation as a whole--such as the principle that
discrimination on the basis of race is odious and
destructive--will go unquestioned in the market place of
ideas. … We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that
this cherished emblem represents.
There are a number of assumptions in his decision that clearly represent opinion, although they are integral to the majority verdict. Some are legal and others are empirical. If the First Amendment is to be extended to symbols as well as speech, does it follow that the boundaries of the appropriate use of symbols are the same as those of speech? Does it follow that the consequences of particular boundaries on speech and symbols are identical or similar? (Brennan and prior Courts have failed to distinguish between signs and symbols.)
For instance, suppose a demonstrator carries a standard outside the Supreme Court building carrying the message that the justices are perverts. Suppose another carries a cartoon of a justice committing an indecent sexual act? And suppose a pair of demonstrators commit such an act in front of the Court building as an expression of their opinion of the Court. Suppose others do exactly the same things inside the Court itself. Suppose a lawyer appears at the Court in shorts to express his contempt for the Court.
Would anyone be prepared to argue that these expressions of ideas are equally legitimate? Or that we should "persuade them that they are wrong," to employ Brennan's words, rather than "punish them"? The Court, of course, maintains its dignity and the limited neutrality of its proceedings by prohibiting all the cited examples inside the Court and most of them immediately outside of it, even though these are the only areas in which such forms of protest are likely to be effective. Although, as Justice Oliver Wendell Holmes once noted, there is a twilight zone with respect to any rule, the Court has had no difficulty in finding that other "speech acts" in or near courts are outside of reasonable and discernible limits. And offenders of the dignity of any court in the United States are jailed for contempt.
Limits To Expression
Every social institution, including
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