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CHICAGO — This is a story about one liberal’s newly discovered appreciation for the proposed Flag Protection Amendment. But first, a little history: During the 1984 Republican National Convention in Dallas, a protester named Gregory Lee Johnson doused an American flag with kerosene and set it on fire, while a surrounding crowd chanted “America the red, white and blue, we spit on you.” He was arrested and charged under a Texas statute that prohibited “desecration of a venerated object.” Convicted at trial and sentenced to a year in prison, Johnson appealed, setting into motion a rather surprising series of events. First, the Texas Court of Criminal Appeals — not exactly a haven of bleeding hearts, even in the pre-Bush era — reversed the conviction, noting that “the right to differ is the centerpiece of our First Amendment freedoms.” But then Texas’ petition for certiorari was granted, leading to speculation that the U.S. Supreme Court would reinstate the guilty verdict and uphold the flag desecration law. In surprise No. 2, however, the Supreme Court’s ruling in Texas v. Johnson held that flag burning is indeed expressive conduct, protected by the First Amendment. The greatest surprise of all, of course, was that Justices Antonin Scalia and Anthony Kennedy joined in Justice William Brennan’s majority opinion (though Kennedy also wrote a separate concurrence, expressing his unhappiness at having to reach that result, compelled as it was by the “fundamental meaning” of the U.S. Constitution). Chief Justice William Rehnquist dissented, joined by Justices Byron White, Sandra Day O’Connor and John Paul Stevens (yet another small surprise). Congress reacted swiftly, overwhelmingly passing the Flag Protection Act of 1989 (a pre-existing federal flag-burning statute had been uncomfortably similar to the unconstitutional Texas law), which made it a crime to deface, physically defile, burn or trample the American flag, other than for the purpose of disposal. By making it flatly illegal to burn a flag, regardless of expressive intent, it was thought that the Flag Protection Act could survive a constitutional challenge. It did not. By the same 5-to-4 margin, and in the same alignment, the Supreme Court in United States v. Eichman held that the statute was invalid under the First Amendment because it “suppresses expression out of concern for its likely communicative impact.” Recognizing that no flag-burning statute could ever meet the constitutional test articulated in Johnson and Eichman, various groups began promoting a Flag Protection Amendment to the Constitution, providing that, “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” The amendment has passed the House of Representatives five times, most recently by a lopsided vote of 300 to 125, but it has never quite managed to obtain the two-thirds vote in the Senate necessary to send the amendment to the states for ratification. It will likely come to the Senate floor again some time this fall. Conservatives are almost uniformly in favor of the Flag Protection Amendment, arguing that it is necessary to preserve a great symbol of national unity. Liberals tend to be opposed, fearing that no good can come of any effort to limit freedom of expression. As a lifelong liberal, my initial view was that it was a big mistake to modify the First Amendment, which has served us so well for more than 200 years. But now, surprising even myself, I have come around to the position that the proposed Flag Protection Amendment might not be quite so bad after all. First, national opinion polls consistently show that nearly 80 percent of Americans would vote in favor of such an amendment. Of course, widespread public support does not justify the elimination of essential personal freedoms. Protest, especially by minority groups, is often unpopular. That’s why we have the Bill of Rights. On the other hand, public sentiment is an important value that liberals all too often seem to overlook. At the very least, the overwhelming approval of the flag amendment should cause us to ask just how much damage it would really do to civil liberties. And it turns out that the flag amendment would not limit freedom of speech very much at all. No words or beliefs would be prohibited, no opinions would be suppressed. A single manner of protest would be enjoined, but the ideas behind the protest could still be expressed in a multitude of ways. As a liberal, I am in favor of broad forums for free speech, but I can still recognize a fairly negligible restriction when I see one. Had the original First Amendment included a flag exception — “Congress shall make no law abridging the freedom of speech, except for flag burning” — there is little doubt that the subsequent history of popular democracy would have been entirely unaffected. A few more protesters might have gone to jail by choice, a few more flags probably would have been burned out of frustration, and the tradition of dissent would have been otherwise unchanged. The classic “slippery slope” argument, a staple of liberal analysis, posits that small restrictions may lead to bigger ones. But in this case, that is not true. It is tremendously difficult to amend the Constitution — requiring a two-thirds vote in each house of Congress and ratification by three-quarters of the states — so it is extremely unlikely that the flag amendment will be quickly followed by others. About 11,000 amendments have been proposed since the adoption of the Bill of Rights, yet only 17 have been adopted. Constitutional amendments are not dominoes. The Flag Protection Amendment is not the first step on a long march toward thought control. Finally, consider a concept that we might call the “integrity of protest.” The Supreme Court’s legalization of flag burning may have legitimated flag abuse as a First Amendment right, but it also deprived the gesture of much of its expressive punch, making it now more of a tantrum than a demonstration of deep conviction. It means very little to say, “I can burn a flag and you can’t stop me, nyah, nyah, nyah,” as compared with “I am so committed to the righteousness of my cause that I am willing to risk the penalties for flag burning.” When thousands of antiwar protesters burned their draft cards in the 1960s, they faced the very real threat of prosecution and imprisonment for as long as five years. It was that fact, not merely the ignition of a small piece of paper, that helped convince the nation of the seriousness of the movement. The draft-card burnings added fuel to the antiwar campaign precisely because they were really illegal. Actions can be more persuasive when they are taken at personal cost. That is the power of true civil disobedience. At some point, we liberals might want to worry less about enabling every single expressive outburst, and more about the vitality and content of purposeful dissent. I haven’t completely lost my liberal bearings. No matter how much conservative activists fulminate, I remain quite aware that the republic is hardly endangered by flag burning, legal or otherwise. The ideals that make up America can easily survive the most vitriolic forms of protest. Therefore, I am not enthusiastic about the flag amendment and, all things considered, I think the nation would probably be just as well off without it. But a powerful argument exists for the importance of a unifying national symbol — just recall the spontaneous flag displays around the country in the wake of the 9-11 terror attack. People take great comfort in our flag, and that devotion ought to be respected — especially by liberals, who are often unfairly accused of disrespect, and worse. So, in a time of increasing challenges to real civil liberties, this is one battle that needs not be engaged. It would make far more sense to spend our limited political capital on amending the Patriot Act or filibustering right-wing judges, rather than on facilitating flag burning. Liberals could show great good faith, while dispelling some shabby right-wing myths, by acknowledging that the Flag Protection Amendment will do no harm. Steven Lubet is a professor of law at Northwestern University in Chicago. His most recent book is “Nothing But the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.” He can be reached at [email protected] This article originally appeared in The American Lawyer magazine, a Recorder affiliate based in New York City.

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