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Show THE CONSTITUTIONALITY OF FLAG BURNING: HATE OR FREE SPEECH? AN ANALYSIS OF TEXAS v. JOHNSON Nicholas Barker we are not threatened. My colleagues, we are offended; and to change our Constitution because someone offends us is, in itself, unconscionable" (AllPolitics 1999, 1). This argument seems reasonable given that only eight flag burnings have been reported yearly for the entire United States since the decision in Johnson (O'Connor and Sabato 2000, 167). Other citizens have expressed contempt for the amendment because they consider flag burning a victimless crime. Says one man, "if I strike someone, I risk inflicting real harm. However, if I destroy a piece of my own property, even an American flag, I hurt no one." He continues, saying "once we attempt to regulate the 'offensive,' we've made the transition from political correctness to thought control" (O'Connor 1999, A14). Another says, "I do not like flag burning, but why give more recognition to those who do it?... Does 'the problem' need to be raised to a constitutional level? Or, is public outrage enough?" (Mackley 2000, A10). National heroes also come down against the amendment - former senator, astronaut and Marine, John Glenn has said "it would indeed be a hollow victory to protect the symbol by taking any chance at chipping away at the freedoms themselves" (AllPolitics 1999), maintaining that "those who have made the ultimate sacrifice did not give up their lives for a red, white and blue piece of cloth" but rather "because of their allegiance to the values, the rights and principles represented by that flag" (Goldstein 2000, 236). Retired general Colin Powell echoed this sentiment in a letter to the Senate Judiciary Committee saying that while he was "rightfully outraged" by flag desecration, it did not damage "our system of freedom," whose First Amendment applies protection "not just to that with which we agree or disagree, but also that which we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants" (Goldstein 2000, 239). These conflicting opinions do not resolve the debate, but they do show that flag burning is a complex issue with many people, both public and private, supporting many different arguments. The most accurate way to test public support for the amendment is to conduct opinion polls. Five surveys published by the Gallup organization, conducted from 1989 to 1999 show amendment support ranging from 62 percent to 71 percent in favor, and 24 percent to 36 percent opposed (see Appendix 2). Perhaps the most cited number is the "80 percent support" frequently mentioned by members of the Citizens' Flag Alliance, who have conducted nearly 30 polls of their own. However, the only well-documented poll published by the Alliance was a 1998 Gallup Poll they commissioned, which "found 76 percent of respondents favor the amendment" (Taylor 1999). This number has been challenged by a Freedom Forum survey conducted in July 1999 that found only "51 percent favored a constitutional amendment to protect the American flag from desecration" (Elvin 2000, 34). Says Elliot Mincberg, legal director for People for the American Way, "this survey further reinforces the notion that the alleged support may be a mile wide, but it's only an inch deep," because "once you get out the specifics of the amendment and what it will do...support drops way down" (Taylor 1999). However, Flag Alliance President Daniel Wheeler has attacked this survey as inaccurate due to its informing respondents before questioning that "the passage of a flag amendment would mark the first time in the nation's history that the Constitution had been amended to restrict freedoms guaranteed by the First Amendment" (Taylor 1999). The question remains: do these specific, one-issue surveys tell the truth about public sentiment? Robert Goldstein of Michigan's Oakland University says no: "the public as a whole has completely lost interest in this issue. The public is not in fear for their lives because of these flag-burners" (Taylor 1999). He continues, "when pollsters ask Americans about the most important issues, fewer than 1 percent of respondents mention flag desecration," which is insignificant, because "if they are really concerned about something, they will spontaneously respond to an open-ended question" (Taylor 1999). There have been other signs that concern about the issue is low: in Indianapolis (home of the Citizen's Flag Alliance and the American Legion) on Flag Day, 1999, only 150 people showed up at a celebration to "retire" a flag with a ceremonial burning, and support the flag desecration amendment (Goldstein 2000, 241). Regardless of whose numbers are correct, the debate over the amendment will continue. Will lawmakers propose it again, and if so, will it pass? Or is it more appropriate to ask, should it pass? This question invites a normative response that reflects one's individual values and beliefs. FLAG BURNING THROUGH A LIBERAL DEMOCRATIC LENS Two documents that best reflect American attitudes toward freedom, the Declaration of Independence and the United States Constitution, both derive their substance from liberal democratic theory. Preservation of individual dignity and a limited government where the majority rules while protecting minority rights are basic tenets of American government. Just as Thomas Jefferson believed that governments derive their just powers from the consent of the governed, so too does our national identity derive its meaning and value from the collective opinion, the outcome of millions of individual opinions. In expressing an individual opinion, every person has worth in the marketplace of ideas, and this ability to participate in meaningful discourse is the cornerstone of the First Amendment's guarantee of freedom of speech. Most would take it as given that free speech is important, given the legal protection afforded to it by the First Amendment. But the question remains to be answered, why is freedom of speech important? Drawing upon two-hundred plus years of constitutional law and political theory, I offer two main answers: the first lies in the role of free speech as a means of finding truth, and therefore making advances and solving problems. The second answer, in line with the intent of this nation's founders, proposes that free speech is a necessary precondition for an informed citizenry that must make 52 |