The Not Quite Adventures of a Professional Archaeologist and Aspiring Curmudgeon

Friday, May 14, 2010

Flag Burning and Political Narrative

We all know the story, it fits our narrative in an archetypal way. It was once illegal to burn a flag as a sign of protest. Finally, the police arrested someone who was willing to fight back, and with the help of the ACLU the case made it all the way to the supreme court. The conservative members of the court were in favor of upholding the ban, the liberal ones wanting to remove it in order to support free speech. In the end the liberals won, and the ban was struck down, and freedom rules.

That's the way that I have always heard it, and it seems to be the popular narrative.

Too bad the truth is much more complicated. Our narratives should always be questioned.

It was Gregory Lee Johnson who spurred the issue forward in 1984 while protesting at the Republican National Convention. He burned a flag while chanting that whether Mondale or Reagan won, we were on the path to the third world war, as well as chanting anti-globalization slogans that would sound familiar to anyone who has paid attention to politics for the last forty years. He was arrested and charged not specifically with flag burning, but with violating a Texas law that criminalizes the destruction of respected or venerated objects.

The case was appealed, and the ACLU, as well as other organizations, did in fact get involved. But when the matter reached the Supreme Court, things got interesting. The decision to strike down the law was close - 5/4, as would be expected. What might surprise many people is that the decision didn't break down along the conservative/liberal lines that people generally expect. Justice Stevens - in truth a moderate although he tends to get painted as a "liberal" - was in favor of the ban, and is on record as stating that the flag was a unique symbol to which the normal rules don't really apply, and therefore banning it's "desecration" is legitimate. Justice Scalia, generally regarded as an ideological conservative, argued that the ban should be struck down. He has written that he dislike Johnson, and disliked what Johnson did, but that the Constitution is clear on the right to free speech and that previous court decisions clarified that speech applied to conduct intended to convey a message as well as to the printed and spoken word.

I am surprised to find that I actually agree with Scalia on something, but on reflection am not as surprised that I would agree with him on this type of issue. Scalia is one of the justices who has argued that the Constitution should not be seen as a "living" document - that is, it's not open to reinterpretation as times change - but that it is static and that changes must come through amendments and not reinterpretation. I'm ambivalent about that, but what it does mean is that, where the constitution promises a right to free speech, if he is to be consistent then he must argue that there are no limits to that freedom except as declared in the Constitution.

To be certain, Scalia was not pleased to have to arrive at this conclusion. He has written that Johnson was a "bearded weirdo" and that he found the flag burning reprehensible, but he also recognized something that very few people seem to: if you ban something simply because you find it reprehensible and not because of a solid legal purpose, then you have opened up the floodgates for anything to be banned for reasons of subjective taste.

And, the fact of the matter is, the reason for the Constitutional protection of free speech is to ensure that people who hold unpopular views or who need to do shocking things in order to draw attention to something that they think is important are allowed to do so, provided that they don't impinge on the rights of others. This type of freedom is vital to a democratic republic.

It's interesting, given the breakdown of the court, that this issue has come to be seen as "liberal protectors of freedom vs. conservative upholders of order". This is probably because of the way in which our legislators behaved, as well as the fact that, for reasons that always seemed odd to me, self-professed "conservatives" are generally (though admittedly not always) more likely to support bans on speech directed against national symbols. But, in the end, things can and sometimes do play out in unexpected ways. Our political and social narratives are often (perhaps typically) wrong, and we should question them.

For a good discussion of the matter, go to this podcast.

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