Over at the Captain’s Quarters i a discussion about the passage of an anti-flag desecration Admendment. I think the Captain makes two good points, but then goes off track in a way that illustrates the difficulties of trying to be a little bit restrictive.
The first is that the Admendment itself is un-American, idolatry wrapped up in a false skin of patriotism. It has always been America’s greatest strength that it is a nation founded on ideas, not blood, soil or icons. It demeans this great nation to pay such attention to the petty twerps who pretend to be “dissenters” by burning a flag. It just reenforces their delusional belief that such acts have any real meaning other than to broadcast “I’m a stupid jerk who can’t find any coherent way to express myself”.
The second is that this is blowback from an activist court that seems to favor petty and pointless speech over real citizen involvement in politics. Of course, if we had a Supreme Court that actually read the Constitution instead of foreign laws, it wouldn’t be striking down laws because of the “rights in the penumbra” but because the Constitution does not authorize Congress to issue such law. Instead of a “right to privacy” it should have been “no clause found in the Constitution authorize this law”. Of course, FDR has to take much of the blame for this situation when he forced the Supreme Court to turn the Commerce Clause in to a general justification for any legislative action. The USSC, apparently unwilling to return to a proper view of that clause, was left with the specious “rights” doctrines that have been the source of such much bad law from that Court.
Where I think the Captain goes wrong is in his suggested Admendment:
The amendment in this case shouldn’t be that narrow — it should recognize that speech doesn’t consist of anything else but the verbal or written publication of actual speech, not arson, nude dancing, or blowing up buildings, which is the logical extension of the 1989 decision. Everything else should be left to the Legislature to regulate.
The problem with this is that there is quite a lot of very valid, important political “speech” that contains no literal speech. An excellent example is by Fox and Corkum which frequently have few words. Unless one counts labels as “actual speech”, most of these would be excluded under the Captain’s Admendment. Is that a good idea?
If we accept that drawings such as those are speech, what of people acting out the drawings? What about instrumental music? Should rap music be privileged over classic because the latter doesn’t have words? I think it’s necessary to allow purely symbolic, non-verbal communications as “speech” because much of it is powerful and relevant. The problem, which I also accept, is that it now becomes very hard to draw a line between politically powerful sketch acted out in a public place and burning a flag, especially in something as concise as a Constitutional Admendment. As flawed and problematic as the First Admendment is, I think other choices are even worse.