Abbie's Shirt

Does no one remember Abbie's shirt?

You had better. Yesterday, the Senate came within a single vote of sending a constitutional amendment onto the states which would have allowed legislation outlawing the desecration of the flag. There were already a sufficient number of states who had declared that they would ratify.

We are not merely talking about the first constitutional amendment ever to limit the Bill of Rights. We are talking about destroying the one great thing which distinguishes the United States from every other advanced democracy.

We are the only country in the world which has the absolute guarantee of free speech contained in the First Amendment. It is the single great idea which distinguishes us from every other democratic country. The First Amendment has been violated in fact and in spirit many times, but always, the Bill of Rights stood as a final corrective.

That protection -- the thing which keeps us from becoming Britain, Canada, or France (all of which have laws abridging freedom of speech in certain cases) -- nearly disappeared.

The amendment's supporters -- who included Senator Diane Feinstein -- say they are merely protecting our national symbol. Abbie's shirt shows why they are wrong.

When he was a defendant in what was then known as the great Chicago Conspiracy Trial, Abbie Hoffman arrived in court one day wearing a shirt that had been fashioned from an American flag. The outrage was palpable (and may well have sparked the amendment which supporters vow they will raise again).

Thirty years later, Republicans showed up at their convention wearing practically identical shirts as a sign of their patriotism.

If Abbie could have been prosecuted for wearing that shirt, he most certainly would. No one at that trial doubted it. If Republicans could have been prosecuted for wearing the same shirt, they most certainly wouldn't.

The difference is in the conflicting ideas that the identical shirts were expressing. And that is why the proposed amendment is so treacherous: for the first time in American history, it would have made constitutional the prosecution of Americans based on their ideas.

Imagine if you will a filmmaker who decides that in our time of war it would be a good idea to remake The Sands of Iwo Jima. There is no way to film that story's great iconic image without distressing the Symbol of America. Now imagine another filmmaker who decides that, to fan anti-war outrage, he'll make Abbie's biography and show him cutting up a flag to make his sartorial statement.

No prosecutor in his right mind would prosecute the first filmmaker. Any ambitious prosecutor who sees his political opportunity could (had the amendment passed) put the second filmmaker in jail.

Patriotism would be protected; protest would be criminal.

And this would not be a momentary lapse of judgment. It nearly became the fundamental law of the land.

Even worse, it would have served as a breech in the dam which protects all of us from retribution for unpopular notions. While thousands have died because of flag waving, there is not a single human being who has ever died because a flag was burned.

The same cannot be said of hate speech. Jews, blacks, and gays have been killed by people inflamed by vitriolic language. (Catholics may have escaped death, but they have certainly been persecuted as well.) If flag burning, which has no mortal consequences, is to be banned, why not join Germany, Canada, and England in prohibiting the most loathsome forms of expression?

Why not send Chicago White Sox manager Ozzie Guillén to jail for calling a reporter a "fag?" Ban the word "nigger" whether it comes from a rapper or Strom Thurmond? Pass a law (as England nearly did) which would make the publication of The Satanic Verses a crime?

In our entire history, there has only been a single Constitutional amendment which limited rather than expanded Americans' rights. It allowed for Prohibition. It must have seemed like a good idea at the time.

During the Civil War, when Lincoln suspended habeas corpus, the Bill of Rights remained inviolate.

During World War II, when Roosevelt interred Japanese-Americans, the Bill of Rights remained inviolate.

During the McCarthy era, when Americans were jailed and fired for their political associations, the Bill of Rights remained inviolate.

Had the flag-burning amendment passed the Senate and gone to the States, the Bill of Rights would not have remained inviolate.

We were one vote away from becoming just another democracy.

One vote -- are you listening Senator Feinstein? You nearly gave away the country. If one more Senator had voted the way you did, the United States of America as a singular nation in the history of this planet would have ceased to exist.