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Nothing I’ve ever written has provoked as many responses as my recent column on the proposed Flag Protection Amendment [October 2003]. To recap, I suggested that liberals (including me) ought to rethink their vocal opposition to the amendment for three main reasons. First, the amendment would not really restrict freedom of expression, in the sense that no ideas or viewpoints would be suppressed. One manner of protest — flag burning — would be prohibited, but the underlying sentiments could still be expressed in countless other ways. I also pointed out that the familiar “slippery slope” argument has remarkably little force in this instance, given the extraordinary difficulty of amending the Constitution. Finally, I noted that 80 percent of Americans are in favor of a flag protection amendment. That is not reason enough to support it, of course. Majorities are often wrong. But it would not hurt for liberals to pay more attention to the preferences of the majority, especially in purely symbolic matters. I will spare you the favorable comments I received from moderates and conservatives. The more interesting responses came from fellow liberals who were saddened and/or outraged by my defection. My column was “a lot of hooey,” according to a Philadelphia correspondent, who reminded me that “principles are principles.” Others questioned my claim that I have not lost my liberal bearings. “How can you tell?” asked one reader from Chicago, who charged me with making “ad hoc exceptions to principle.” So let’s take a look at the principles that I might have betrayed. One argument is that freedom of expression must never be restrained. That is a consistent position, but I know of no one who truly adheres to it. First Amendment law is shot through with sensible exceptions: child pornography, fighting words, sexual harassment, cross burning, libel, deceptive advertising, some types of hate speech, and picketing within 100 feet of an abortion clinic, to name only the most prominent. The addition of flag burning to this list would not exactly open the floodgates. In any event, most liberals endorse some or all of the existing limitations on speech, so protecting the flag should hardly drum me out of the corps. There may be some absolute absolutists out there, but I suspect they are very few in number. Then again, perhaps the point is that the First Amendment is too precious ever to be amended. Although many people hold that quite respectable view, it is unsustainable as an ironclad principle. Ultimately, the First Amendment has to be treated like the rest of the Constitution — subject to amendment under the terms of Article V — if only to correct glaring errors by the U.S. Supreme Court. To use a recent example, the Court held in Employment Division v. Smiththat the First Amendment does not require a “free exercise of religion” exception to generally applicable criminal laws. Congress attempted to reverse that ruling by passing the Religious Freedom Restoration Act, which the Court promptly ruled unconstitutional in City of Boerne v. Flores. Many scholars and activists, both liberal and conservative, strongly question both decisions as damaging religious freedom and badly misinterpreting the Constitution. Would it be wrong (or unprincipled? or illiberal?) to propose a constitutional amendment to correct the Court’s mistake? Or does First Amendment absolutism mean that the Supreme Court is always unamendably correct? I hope it is obvious that such an inflexible principle would be far more troubling than the Flag Protection Amendment. The Supreme Court sometimes gets things very wrong — consider the Dred Scott case and Plessy v. Ferguson– and the Constitution therefore provides a necessary corrective in the amendment process. That does not mean that the Flag Protection Amendment is a good idea, but it is certainly within the ambit of liberalism to consider its potential virtues. Several readers voiced a less sweeping, and more pragmatic, objection to the Flag Protection Amendment, arguing that it would become a precedent for further restrictions on free speech. One Californian wrote that “toying with a basic constitutional principle cannot help but cheapen the process of amending the Constitution.” The slippery slope may be a staple metaphor in the liberal lexicon, but it is not very compelling in this situation. Apart from the Bill of Rights and the Reconstruction amendments, the fact is that constitutional amendments just don’t come in clusters. If one amendment were truly the stepping stone to another, 16-year-olds would be eligible to vote, and the presidency would be limited to a single term. There is another version of the “bad precedent” argument that does not rely on a constitutional domino effect. A Washington, D.C., reader observed that the eventual enabling legislation could turn out to be worse than the amendment itself: “The constitutional slope will get its incline and slickness when Congress enacts draconian prohibitions.” Fortunately, the proposed Flag Protection amendment is pretty narrow, providing only that “Congress shall have power to prohibit the physical desecration of the flag of the United States.” Authority is given exclusively to Congress, not to state legislatures; it protects only the flag itself, not other red, white, and blue banners or cloths; and it applies only to physical desecration, not manners of display or other forms of disrespect. The drafters of the amendment obviously took some care to make it as specific and viewpoint-neutral as possible. Perhaps it is still too broad, but that would be a reason for liberals to enter negotiations over the amendment, not to fight it tooth and nail. The question of overbreadth actually brings us to one of the underappreciated advantages of a flag protection amendment. The Supreme Court’s two flag burning cases ( Texas v. Johnsonand United States v. Eichman) were both decided on 5-to-4 votes. While Justices Scalia and Kennedy voted with the majority, the other three — Brennan, Blackmun and Marshall — are no longer on the Court. Given the Court’s current membership and the possibility of multiple Bush appointments, it is quite possible that the issue will be revisited and that Johnsonand Eichmanwill be overruled. The Supreme Court, though, cannot simply ban flag burning. Instead, the opinion would have to carve out a much broader exception for expressive conduct that would necessarily be open-ended. At the most extreme, we might get a decision that excludes all sorts of offensive behavior from the First Amendment — goose stepping, clenched-fist salutes, obscene gestures, and who knows what else. Unlike a Supreme Court opinion, a constitutional amendment can be specifically limited to protecting the flag. No further rationale is necessary, and no general principle would emerge. Indeed, the broad range of expressive conduct might be safer under the Flag Protection Amendment than under the fragile protection of a vanished Supreme Court majority. In the final analysis, the amendment process is political, and politics sometimes requires compromises. Given that the Flag Protection Amendment would have no noticeable impact on the content of free expression or public debate, I think it is prudent to suggest that liberal efforts would be far better spent on repealing the Patriot Act or working to defeat the recently proposed Federal Marriage Amendment (which would eviscerate gay rights). Of course, many committed liberals see things differently. Another Chicago reader put it rather eloquently: “In a time when dissent has been demonized in the media and when patriotism has been defined as unconditional support of our president, it is dangerous to allow our expressive rights to be curbed.” Alas, I think he got it exactly wrong. At a time when dissent is devalued (it has not been quite demonized yet), there is no reason for liberals to align themselves with the angry immolations of the most eccentric and divisive protesters. More than anything, our nation today needs discourse, not tantrums. Sure, we have to defend to the death everyone’s right to say, write, think, shout, sing, and signify their viewpoints. But we don’t have to stake the future of progressive politics on the protection of flag burning. In the 2000 election, George Bush carried Florida by about 500 votes, largely on the strength of military absentee ballots. Most of those votes were cast by enlisted personnel — working-class men and women who ought to be Democrats. Forget about butterfly ballots and hanging chads; Al Gore really lost Florida because of the perception that liberals are antidefense and insufficiently patriotic. Rigid opposition to the Flag Protection Amendment is just one more step into a right-wing trap. It would not hurt if we could figure out a way to avoid it this time. Steven Lubet is a professor of law at Northwestern University. 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.” E-mail: [email protected] .

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