Posted by Eugene Volokh:
Flag Desecration and "Hate Speech":
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242332496
Here's a press release from Missouri Rep. Jo Ann Emerson (which I
found on the States News Service, May 6, 2009, but is also available
[1]here) (emphasis added):
A resolution authored by U.S. Rep. Jo Ann Emerson (MO-08) is
getting bipartisan support in the U.S. House of Representatives for
a constitutional amendment to prevent desecration of the American
flag.
"The American flag is more than a symbol, especially to the
American men and women who have served in uniform, putting their
lives at risk for our country with the flag stitched on their
sleeves. People who desecrate our flag don�t fully understand, and
certainly do not respect, the service of these Americans in defense
of our freedoms," Emerson said. She also pointed out that, while
the First Amendment protects free speech, it offers no protection
for hate speech.
"When a flag is burned or desecrated, especially by another
American citizen, a severe injury is inflicted on the patriots of
this country who have served us and by those who have lost a loved
one," Emerson added.
The proposed constitutional amendment is one sentence: "The
Congress shall have power to prohibit the physical desecration of
the flag of the United States."
Regarding the prospects for her measure�s passage in the U.S. House
of Representatives, Emerson said, "I think there is a lot of
support for this idea in Congress, among veterans service
organizations in our country, and by the American public. Before
the Supreme Court invalidated flag protection laws in 1989, 48 U.S.
states and the District of Columbia had measures on the books. I
would very much like there to be an opportunity to restore that
much-needed sanctity to our flag. It�s a symbol of every American
life spent or lost in the service of our country," Emerson said.
Since the 1989 Supreme Court ruling in the case of Texas v.
Johnson, all 50 states have passed memorializing resolutions asking
Congress to pass a constitutional amendment and to send it to the
states for ratification.
Of course, neither the First Amendment nor the doctrine that the Court
has developed under that amendment, has any exception for "hate
speech." One would hope that members of Congress would at least know
constitutional law -- or have their staffs look it up -- even if they
don't agree with it.
But I think this also helps illustrate the dangers of "[2]censorship
envy," and of creating new constitutional exceptions, especially for
ideas that some find repulsive. Rep. Emerson seems to think the
supposed constitutional exception for hate speech supports her
proposed new exception. I take it that she also expects that some of
the readers of the press release will take the same view. And why not?
Once you conclude that hateful expression about this or that group is
punishable, you might feel yourself like a dupe to tolerate expression
that you see as hateful to the nation and the symbols you cherish.
It's hard enough to tolerate offensive speech, harder still to
tolerate offense when others aren't required to do the same.
Say, though, that a new First Amendment exception for flagburning is
indeed recognized. Then the censorship envy I describe above will
likely operate in reverse: There'll be still more pressure to
recognize a "hate speech" exception in earnest. Once the law concludes
that hateful expression towards America or the flag (even a narrowly
defined sort of hateful expression) is punishable, others might feel
themselves like dupes to tolerate expression that they see as hateful
to their race or religion or ethnicity or sexual orientation or what
have you.
And even if those people are defeated in their attempt to create a new
"hate speech" exception -- if an exception for anti-American symbols
is recognized but by an exception for anti-Muslim or anti-black or
anti-gay or what have you symbols is not -- they will be
understandably upset by what they'll see as unfair treatment. Instead
of uniting us around a symbol, the amendment would divide us further.
In any case, I wrote about this [3]some years ago, but the principle
seems to me to remain the same. But now some members' willingness to
make certain expression unprotected is compounded by a Congresswoman's
ignorance about what expression actually is protected.
References
1. http://www.suntimesnews.com/8C/news/05-May/0511emer.htm
2. http://www.law.ucla.edu/volokh/flag.htm
3. http://www.law.ucla.edu/volokh/flag.htm
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