On the heels of Kelo vs City of New London, comes the troubling news that Congress is offering up an ill-advised constitutional amendment to protect the flag (banning desecration of the flag has already been struck down as unconstitutional). Proponents are asking for just a little leeway in their attempts to protect the symbol of our freedoms, arguing that minimal protection to the symbol does little to endanger free speech. That’s an easy sell and a fairly transparent way to curry populist favor. But the end result is, in fact, an assault on free speech and a limitation on dissent.
The amendment would pave the way for legislators to pass a bill prohibiting the desecration of the flag, though the act of desecration, of course, hinges on context Lawmakers would not want to disallow boy scouts from burning the flag in a ritual of disposal, nor would actors in a movie be prohibited from burning the flag as part of a scene. Meaning, that enforcement of the law would depend not so much on the physical act itself, but on intent.
And what sort of intent would be subject to criminal prosecution? Presumably the kind that is aimed at desecrating the flag as an act of protest or petition, one that expresses displeasure with the United States. In other words, the primary purpose of the law would be to prevent certain acts of protest. It’s a truism that the right to free speech is not unlimited, that there may be an over-riding public or national security interest that compels the state to prohibit or curtail certain speech acts. But flag-burning does not even come close to representing a threat to the public good or to national security. A far more sinister threat is a Congress that hides behind a populist patriotism in order to limit speech and restrict the open expression of dissent.
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