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Shawn Healy Headshot

Lots of Smoke, Little Fire

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They're at it again. In the midst of a devastating economic recession, and on the heels of a budget-busting stimulus package and annual spending plan, our elected officials in Washington have decided to put national health care and cap and trade legislation on hold to deal with more pressing matters, specifically their biannual attempt to diminish the 45 words of the First Amendment via a flag desecration amendment.

Twenty-four senators have joined Senator David Vitter (R-LA) as co-sponsors of Senate Joint Resolution 15. Two of them are Democrats, Debbie Stabenow of Michigan and Evan Bayh of Indiana, nixing the characterization as a partisan ploy. If passed by a two-thirds vote of both the House and the Senate, and then ratified by three-quarters of all states, the 28th Amendment would read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Eugene Volokh, a UCLA law professor, demolished the case of those who argue that judicial activists have "twisted the original meaning of the First Amendment to protect such symbolic acts as flag burning." Citing English common law, Blackstone's "Commentaries," James Madison's original draft of the First Amendment, and early 20th Century case law, Volokh makes a compelling argument that symbolic expression was equated with speech from the outset.

This assumption taken as a given, we turn next to whether flag desecration constitutes symbolic expression protected by the First Amendment. The 1968 Supreme Court case U.S. v. O'Brien set forth a test by which we may judge whether flag desecration prohibitions abridge freedom of speech. It centered on a Vietnam era law that prohibited the destruction of draft cards. Congress defended its merits on grounds that they conveyed critical information between the government and its citizens during wartime mobilization.

The Court sustained the law, and held other instances of "speech plus," which contain speech and non-speech elements, to the following parameters. One, the government regulation must be within its constitutional power. Two, it must further an important or substantive government interest. Three, the regulation is not related to the suppression of expression. Four, the incidental impact on expression is no greater than necessary to further that interest.

The O'Brien test was considered by the Supreme Court in the context of flag desecration in the 1989 case Texas v. Johnson. At issue was a Texas law that forbade defacement or damage to the American flag with knowledge that it will "seriously offend one or more persons likely to observe or discover his action." The 5-4 majority found insufficient the state's interest in preserving the flag as a symbol of nationhood and national unity.

Specifically, it failed the third prong of the O'Brien test prohibiting the suppression of expression. Those who wished to burn flags during "respectful ceremonies" were free to do so at will, yet the same action as a form of protest was criminalized. Congress answered immediately with federal legislation to replace the fallen state statutes, but one year later the Court struck down this law too under the Johnson precedent in U.S. v. Eichman.

The Eichman decision was the final nail in the coffin for those who would prohibit flag desecration by statutory means, thus the regularly scheduled pony show of patriotism otherwise known as the flag desecration amendment. Critics were alarmed during their second-to-last attempt three years ago when 66 senators voted in favor of the amendment, but its likelihood of passage was always slim. Then-Minority Leader Harry Reid was able to pare off enough Democratic votes to protect those in his party in the midst if a tough re-election battle in a swing state cognizant of the fact that he would peel them away one-by-one should the required two-thirds majority materialize.

Given the now solid Democratic majorities in both houses of Congress, this shell game installment will also come up empty, and it thus begs to question why our elected officials continue to waste their time and ours while they go about the "people's business."