Old Glory, R.I.P.

Twenty-four years ago, in Texas v. Johnson, the court held that the 1st Amendment prohibits state statutes banning flag burning. /1/ In so ruling the court struck down the flag desecration statutes of 48 states and the United States; and reversed the conviction of a sub-human called Johnson. While Johnson burned the flag, his fellow protestors chanted, “Red, White, and Blue, we spit on you!” According to the court, that was “political expression” protected by the 1st Amendment, which (so the court, following a prior case, silently assumed) applies as against states through the due process clause of the 14th—even though due process applies only to judicial proceedings and never, said Alexander Hamilton, to acts of state legislatures.

In the abstract, I suppose one might argue that the result is in a narrow sense supportable. It simply reflects the culmination of a line of cases holding that the 1st Amendment forbids any restriction on “expression” that has political overtones to it. But apart from the fact that the 1st Amendment is not part of due process and is not binding on states, the text of the 1st Amendment itself shows that the right of expression is not absolute. The amendment reads: “Congress shall make no law . . . abridging the freedom of speech.”

Had the 1st Amendment said, “Congress shall make no law . . . abridging speech”, one could argue that no speech of whatever kind or character could ever be restricted. But as the qualifying term “freedom” denotes, to decide whether particular speech is protected, one must decide whether the speech is within the ambit of “freedom of speech”. When the 1st Amendment was adopted, nearly all the states had laws against profanity, blasphemy, and defamation. /2/ Thus it’s more than a little far-fetched to maintain that freedom of speech includes flag desecration—even if desecration could somehow be characterized as speech rather than criminal conduct.

Flag burning is conduct, not speech. In the language of the Founders’ era, “speech” was defined as “articulate utterance, talk”. /2a/ Johnson was prosecuted not for his expression of “dissatisfaction” with the government, but for the method he chose to express it. “Had he chosen to spray paint . . . his message . . . on the Lincoln Memorial,” dissenting Justice John Paul Stevens wrote, “there would be no question about the power of the government to [stop him]. [T]he same interest supports a prohibition on the desecration of the American flag.”/3/

Justice Stevens, who has had a hand in much of the judicial tyranny that has plagued us for 70 years or so, was on this one occasion right, although his confidence that the Lincoln Memorial spray painter could be stopped was I think optimistic. If the court today had a spray painter case before it, it would be an open question as to how it would be resolved. And if Johnson, instead of spitting on the flag, had instead dropped his pants and defecated on it as a way of expressing his innermost feelings, the court, constipated by the Johnson precedent, would have to strain to distinguish “defecation expression” from “spitting expression”. As Jules B. Gerard aptly said, “The step between constitutionalizing the words, ‘S**t on the United States’ and validating the act of defecating on the flag is a short one.”/4/

Flag burning is criminal conduct; it’s not free speech. To say otherwise is to say that any crime, including murder, intended as an expression of one’s opinion is free speech, i.e., the expression of the murderer’s opinion of his victim. Thus Oswald’s assassination of President Kennedy can be viewed as the ultimate in political expression. (God help us all if the ACLU gets wind of the free “expression” defense to murder.)

Johnson is more than mere constitutional error. It’s emblematic of a much greater problem with our legal system. “Our first work,” wrote 19th Century anarchist Mikhall Bakunin, “must be the annihilation of everything that now exists. When you have freed your mind from the fear of God, and that childish respect for the fiction of right, then all the remaining chains that bind you—property, marriage, morality, and justice—will snap asunder like threads.”/5/ Johnson is the cancer of nihilism, the tertiary syphilis of a legal system tottering at the brink of dementia.

Chief Justice Rehnquist

As Chief Justice Rehnquist wrote in dissent, the Johnson majority ignored Justice Holmes’s familiar aphorism that “a page of history is worth a volume of logic.”/6/ One, I suppose, can argue endlessly about whether burning, spitting, or defecation is free speech; but in order to understand and apply our constitution, it helps to have a sense of history. On that day, Rehnquist had that sense as he recounted our flag’s history.

From the harbor at Fort McHenry when Francis Scott Key scribbled the national anthem, to the peaks of Iwo Jima, when Marines raised a piece of pipe upright and from one end fluttered a flag over 6000 of their dead comrades below; from the streets of Frederick, Maryland, when 90-year old Barbara Fritchie confronted Stonewall Jackson with, “Shoot if you must this old grey head, but spare your country’s flag; to the beaches of Normandy, the cliffs of Inchon, and the jungles of Vietnam—the flag has become an object of an “almost mystical reverence.”/7/

To permit scum like Johnson to desecrate the flag is not only to insult the defenders of freedom who have gone before us, but is also to demean the 1st Amendment itself. When flag desecration is officially recognized as free speech, the death of freedom cannot be far behind. As Russell Kirk wrote paraphrasing Edmund Burke, “Veneration lacking, life becomes no more than interminable battle between usurpation and rebellion.” /8/

To borrow from Khayyam’s Rubaiyat, “The stars are setting and the caravan starts for the dawn of nothing.”/9/ Old Glory, like Federalism, R.I.P.

__________________________________________________________________________________

Quote: Justice Story: “The next clause of the amendment respects the liberty of the press. ‘Congress shall make no law abridging the freedom of speech, or of the press.’ That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.” /10/

_____________________________________________________________________________________

Cross reference:

Shoot If You Must this Old Gray Head . . .

. . .But Spare Your Country’s Flag

Endnotes

/1/ 491 U.S. 397 (1989) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=491&page=397 . The prior case said, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=268&page=652

/2/ See Roth v. United States, 354 U.S. 476, 482-83 (1957) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=354&page=476

/2a/ See Dr. Johnson’s Dictionary, p. 318 @ http://books.google.com/books?id=SaARAAAAIAAJ&q=speech#v=snippet&q=speech&f=false.

/3/  491 U.S. 397, 436.

/4/ “May Society Preserve a Modicum of Decorum in Public Discourse?” The Bill of Rights, Original Meaning and Current Understanding, p. 107.

/5/ http://www.municipalism.com/html/bakunin_1_.html

/6/ Justice Holmes’s quote from New York Trust Co. v. Eisner, 256 U.S. 345 (1921) @ http://supreme.justia.com/us/256/345/case.html.

/7/ 491 U.S. at 421 et seq. In this paragraph, I have tried to digest Justice Rehnquist’s recount of the flag’s history.

/8/ The Conservative Mind @ http://tinyurl.com/65qej56

/9/ http://books.google.com/books?pg=PA56&id=XqwCAAAAYAAJ&output=text

/10/ Justice Story, Commentaries, Section 1874 @ http://www.constitution.org/js/js_344.htm

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Published in: on March 30, 2012 at 10:37 am  Leave a Comment  

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