"Whatís Wrong With the Flagburning Amendment,"

by Prof. Eugene Volokh, UCLA School of Law

(a version of this op-ed was published in the L.A. Times, July 18, 2001)


"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so thatís not exactly how the proposed flag protection amendment reads -- Iíve added the Confederate flag phrase.  But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways.  Some people argue that flagburning shouldnít be protected by the First Amendment because it isnít "speech."  Well, burning one flag and waving another are pretty similar on that score.  I think both are traditional terms in our political language, and should be constitutionally protected; but if Iím wrong, then both should be unprotected.

Of course, burning the U.S. flag deeply offends many people.  But so does waving the Confederate flag, even when itís done by individuals and not by state governments.  Many American boys died defending the U.S. flag -- and many of them died fighting against the Confederacy.  Burning the U.S. flag is often an anti-American symbol.  Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

Itís true that many people see the Confederate flag as not just as a symbol of the Confederacy, and of a slave state rebellion prompted by the election of an anti-slavery President:  They also see it as a symbol of other things, such as Southern pride.  But likewise some people burn the U.S. flag not because they hate America, but only because they want to protest what they see as the American governmentís errors.  Like most symbols, flagburning and flagwaving often mean subtly different things to different people.

So one danger of the anti-flagburning amendment is the slippery slope.  If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them.  Think of it as "censorship envy" -- if my neighbor gets to ban symbols he dislikes, why shouldnít I get to do the same?  This kind of misplaced desire for equality of repression is a powerful psychological force.

Of course, itís likely that the slippery slope will be resisted here, and people will remain free to wave the Confederate flag.  But America would be even more endangered by a selective ban on flagburning alone than by a broader ban:  Such selective suppression will bitterly divide us, rather than uniting us.

Right now, when people -- mostly blacks -- are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them:  "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too.  Many Americans hate flagburning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended:  We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed?  "We in the majority get to suppress symbols we hate, but you in the minority donít"?  "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments?  Would you feel better about America because of them?

America is different from most other countries, and even from most other democracies.  In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right?  Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

The Amendment is a truce:  "I wonít try to suppress your ideas, if you donít try to suppress mine."  And the flagburning amendment risks shattering this truce.

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Eugene Volokh, your humble editor, teaches First Amendment law at UCLA School of Law (see http://www.law.ucla.edu/faculty/volokh), and is the author of a forthcoming First Amendment textbook (Foundation Press, 2001).