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Authors: Robert H. Bork
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offer as the decisive consideration: “[O]ne man’s vulgarity is another’s lyric.” 7 Moral relativism, which the Court endorsed, is necessary to radical individualism. But it must, of course, be confined to areas such as speech and sexuality. It would never do to reverse a conviction for assault on the ground that one man’s battery is another’s sparring practice.
The same impulse was on show in the flag-burning case,
Texas
v.
Johnson
. 8 Forty-eight states and the federal government had enacted laws prohibiting the physical desecration or defilement of the American flag. Johnson and his companions burned a flag while chanting “America, the red, white, and blue, we spit on you.” Texas indicted and convicted him for burning the flag, not for his speech. But five Justices gave two reasons why Johnson’s conviction could not stand. Neither reason bears examination.
The majority’s first reason was that enforcement of the statute violated the “bedrock principle underlying the First Amendment,” that being: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 9 That certainly is a bedrock principle, and it had absolutely no relevance to the case. Texas did not prosecute because Johnson’s idea was offensive but because his mode of expression was. There were dozens or hundreds of ways for Johnson to express his offensive sentiments with the complete protection of the First Amendment. Nor is it unusual for the First Amendment to permit the banning of particular modes of expression. One supposes (though one is no longer quite sure) that government could still prohibit the telecasting of political views in obscenities or the expression of them by loudspeaker at three in the morning in a residential neighborhood. The Court got itself into this particular intellectual quagmire because its responsiveness to the claims of individualism led it to decide previously that an amendment protecting only the freedom of “speech” somehow protects conduct if it is “expressive.”
That brings us to the second reason the Court majority offered:
To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. 10
There are so many answers to that it is hard to know where to begin. The most obvious has been mentioned: burning a flag is not speech and should not fall under First Amendment protection. Beyond that, the Court’s claim that it cannot make distinctions without forcing its political views on us is specious. The customs and practices of Americans make the very distinction the Court says it cannot. Our national flag is entirely different from other symbols. Nobody pledges allegiance to the presidential seal or salutes when it appears. Marines did not fight their way up MountSuribachi to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.
Symbols are necessary to community. As columnist Paul Green-berg put it: “[I]f a nation lives by its symbols, it also dies with them…. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become presences…. Today’s strange arguments from our best-and-brightest against protecting the national emblem are not symptomatic of any kind of
The same impulse was on show in the flag-burning case,
Texas
v.
Johnson
. 8 Forty-eight states and the federal government had enacted laws prohibiting the physical desecration or defilement of the American flag. Johnson and his companions burned a flag while chanting “America, the red, white, and blue, we spit on you.” Texas indicted and convicted him for burning the flag, not for his speech. But five Justices gave two reasons why Johnson’s conviction could not stand. Neither reason bears examination.
The majority’s first reason was that enforcement of the statute violated the “bedrock principle underlying the First Amendment,” that being: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 9 That certainly is a bedrock principle, and it had absolutely no relevance to the case. Texas did not prosecute because Johnson’s idea was offensive but because his mode of expression was. There were dozens or hundreds of ways for Johnson to express his offensive sentiments with the complete protection of the First Amendment. Nor is it unusual for the First Amendment to permit the banning of particular modes of expression. One supposes (though one is no longer quite sure) that government could still prohibit the telecasting of political views in obscenities or the expression of them by loudspeaker at three in the morning in a residential neighborhood. The Court got itself into this particular intellectual quagmire because its responsiveness to the claims of individualism led it to decide previously that an amendment protecting only the freedom of “speech” somehow protects conduct if it is “expressive.”
That brings us to the second reason the Court majority offered:
To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. 10
There are so many answers to that it is hard to know where to begin. The most obvious has been mentioned: burning a flag is not speech and should not fall under First Amendment protection. Beyond that, the Court’s claim that it cannot make distinctions without forcing its political views on us is specious. The customs and practices of Americans make the very distinction the Court says it cannot. Our national flag is entirely different from other symbols. Nobody pledges allegiance to the presidential seal or salutes when it appears. Marines did not fight their way up MountSuribachi to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.
Symbols are necessary to community. As columnist Paul Green-berg put it: “[I]f a nation lives by its symbols, it also dies with them…. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become presences…. Today’s strange arguments from our best-and-brightest against protecting the national emblem are not symptomatic of any kind of
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