Speech without words
Posted by aogFriday, 24 June 2005 at 12:12 TrackBack Ping URL

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.

Comments — Formatting by Textile
Jeff Guinn Wednesday, 29 June 2005 at 22:05


What appalls me most about this amendment is the utter intellectual fatuity underlying it; it is precisely the same jaw-dropping sort of idiocy that lead to 16 some-odd deaths in recent riots over alleged Quran desecration.

The fatuity is this: Any individual flag is a symbolic material instance representing a set of ideas. IT IS NOT THE IDEAS THEMSELVES. Desecrating such a material instance has no effect on the ideas, but suppressingl desecration does.

This is directly parallel with the riots following Snoozeweeks “revelations” of Quran desecration. Even presuming the words of the Quran are divine revelation, no amount of violence to any material instance of those words has any effect on the validity of the words themselves.

I doubt the backers of the flag amendment would put themselves in league with Islamist rioters.

But they should.

Annoying Old Guy Thursday, 30 June 2005 at 11:17

I’d agree that it’s basically the same impulse int he two cases. It’s certainly a lot easier to defend physical objects than ideas, which I suspect is the primary attraction of that meme.

Jeff Guinn Monday, 04 July 2005 at 07:19


One other problem with the amendment that hasn’t received any airing that I know of.

This amendment would impose criminal sanction on the otherwise legal disposal of personal property.

Perhaps I should face jail time if I were to burn my copy (courtesty of the Cato Institute) of the Declaration and Constitution? Those after all, far from being a mere symbolic representation, contain the ideas themselves.

pj Monday, 04 July 2005 at 10:20

It would be better if they gave the power to regulate flag-burning to the states, instead of the Congress. However, it seems you’re applying criticisms against laws that may or may not follow the amendment to the amendment itself. The amendment doesn’t impose criminal sanctions on anything.

Annoying Old Guy Monday, 04 July 2005 at 12:37

Devolving it to the states runs in to the Incorporation problem of the 14th Admendment.

Yes, I’m primarily critiquing follow on laws (although trivialization of the Constitution is directly applicable). However, if the argument in favor is “while it can’t make things better, it’s not certain that it will make things worse” I think that’s sufficient to oppose it.

pj Monday, 04 July 2005 at 15:49

Well, a Constitutional Amendment over-rides the incorporation problem, by creating an exception for flag-burning from the freedom of speech. It’s the ancient principles of legal interpretation of (a) interpreting two apparently conflicting provisions so as to make them both consistent, if possible, and (b) if impossible, interpreting the later enactment as repealing the first.

I don’t see how the amendment itself trivializes the Constitution. It was the Supreme Court opinion declaring that flag-burning law was already determined by the Constitution that made this a matter of constitutional law. If anything trivialized the Constitution, it was the Court.

I’m not sure what the law on flag-burning should be, but I’m inclined to prefer having elected representatives deciding it to judges.

Jeff - I think the animus is mainly against burning flags on public land. Most controversial cases have taken place in public demonstrations.

Annoying Old Guy Monday, 04 July 2005 at 16:29
  1. Ah, I hadn’t realized you meant leave it to the states via an Amendment. Yes, obviously, an Amendendment avoids the incorporation problem.
  2. But see, you yourself call prohibiting flag burning an exception to free speech, which means that SCOTUS didn’t “declare” it, it was in the text all the time as part of the blanket “no law”. I suppose we just disagree on this, but to me the Constitution is crystal clear on this and the only exceptions that have been carved out are for fraud (even yelling “fire!” in a crowded theatre is really fraud, because it’s not a crime if there is, in fact, a fire).
  3. I understand wanting to leave the matter to elected officials, but we are a Republic, not a democracy, and the Constitution puts many things beyond the control of elected officials, speech being one of them.
  4. I’ve never heard any supporter of prohibiting flag burning bring up the public land issue.

Overall, I think Jeff’s argument is very powerful. It really is the same thing and we should be beyond it.

End of Discussion