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The Rhubarb Patch: Flag Burning

From July 1998 through August 2000 , I engaged in an email debate with Stephen B Presser, the Raoul Berger Professor of Legal History at Northwestern University School of Law, over the proposed Constitutional amendment to ban “desecration “of the American flag. Presser and I had expressed opposing views on this topic in print — I had, in fact, quoted him invidiously in my column against the amendment — and our disagreement spilled over into the following exchange.

To Eric Zorn:

A question for you to ponder: Why was it that Earl Warren and Hugo Black both believed that protecting the flag did not run afoul of the First Amendment? Black was the strongest defender of the First Amendment who ever lived. What is it that you and the opponents of the Flag Protection Amendment know that he did not?

To Stephen Presser:

I’ll see your Earl Warren and Hugo Black with Antonin Scalia and Anthony Kennedy and observe that, although the Supreme Court does have the last word, neither it nor its members are exactly infallible. The justices both left and right have all at one time or another seemed more than willing to justify their notions or preconceptions with astonishingly thin constitutional claims. In that, they are human.

Your statement that we cannot long endure as a society without a law to protect U.S. flags reminds me of Bill Kunkle’s thundering declaration in a debate with me (and others) recently that, without the death penalty, civilization itself is impossible.

Where is the evidence for it? What have we seen in the 9 years since Texas v. Johnson that indicates the existence of a problem of sufficient magnitude–or a problem of *any* magnitude–that would justify amending the constitution? I would hope that one who makes his living studying and teaching the constitution would have enough respect for it that he would not want it amended every time some vast, inchoate and, upon examination, not particularly logical notion swelled in the breast of more than 2/3 of the public.

I actually believe that the polling on this question, while accurate to a point, suggests a level of passion or interest in this subject that does not truly exist. To put it another way, when you put the poll question to people, yea or nay, they will support flag protection, but it’s not an issue that very many people spend much time thinking about or worrying about.

And the failure so far of Congress to enact the amendment has not disillusioned and enraged the public to any measurable degree. The public, by and large, has other things on its mind.

I think you would also agree that it wouldn’t be too hard to create a series of poll questions that would show the majority of Americans favoring a number of positions and laws that you and I would agree are unconstitutional.

To Eric Zorn:

I liked the poker play of countering with Reagan appointees. But I do think that neither Scalia nor Kennedy is correct on this one. We don’t have a separate concurrence from Scalia so we can’t be sure exactly what his reasoning is, so he’s not going to help refute Warren and Black.

Kennedy’s opinion is not exactly a model of clarity, and seems to be the same sort of “on the one hand on the other hand” balancing that he and Justice O’Connor often go in for. I don’t find it very helpful. This is not, I think, a balancing-type issue — it’s a question of defining what the First Amendment is supposed to cover.

You made light of Dianne Feinstein, but Black and Warren did believe that you could make a speech/act distinction and flag desecration fell on the act side of the ledger. I think so too, so does Feinstein. That’s what I meant in the piece on the CFA’s website, where I suggested other acts – spray-painting the Washington monument, taking potshots at the President, that might have an expressive component, but are acts regulable by law none the less.

It’s not balancing, but it’s where you draw the line, and even if you see defacing monuments as different from desecrating the flag, it’s a matter of degree rather than quality, in my opinion. Another point along those lines I’ve made in several pieces is that if this is about drawing a line between acts and speech, and if this an issue of great national interest (and it must be if forty-nine state legislatures have actually requested Congress to send on the Amendments — by the way that’s never happened in the history of the republic), why not let the American people draw the line by passing the Amendment?

That brings us to what a believe would be your strongest argument, if I subscribed to it. That is the notion that if one punishes a flag desecrator one punishes him because of his particular political sentiments, and that a country that wants to remain free shouldn’t punish on the basis of political sentiments.

The problem I have with the argument is that it confuses “political sentiments” with the requisite motive to punish anyone under a criminal statute.

When we’re punishing prohibited acts – murder say, or arson – we don’t ask if the perpetrator did it for particular political sentiments, we ask if he or she intended to perform the prohibited act with the requisite statutory intent.

If flag desecration is an act designed to cause outrage and possible breaches of the peace on the part of viewers, than you punish the motive to cause outrage and possible breaches of the peace, not the political sentiments.

You don’t punish the American Legionnaire who respectfully burns the soiled or rent flag to dispose of it in the traditional manner because his act will not cause outrage, and it’s not desecration. Motive is everything in the criminal law – we punish premeditated murder, but not acts of self-defense – the state of mind is crucial.

A desecration statute would be no different. None of the proponents of the Flag Protection Amendment I know wants to abridge freedom of speech in any way. The Amendment is not an attempt to amend the First Amendment or the Bill of Rights, it’s an attempt to bring Constitutional law back to what it was in 1989 before the Supreme Court misread it. We weren’t a repressive society before 1989, and we won’t be if the Amendment ever passes.

I agree completely that the Constitution should only be amended for momentous issues, but I do see this as one, and that brings me to your charge that rankles a bit, that I believe the republic will crumble if this Amendment doesn’t pass.

That’s not exactly what I said, first of all, but perhaps you could make the point with journalistic license. In any event, what I said was that the republic will be endangered if we fail to understand that with rights come responsibilities, and that there is a baseline of order, civility, and shared commitment to values that makes the First Amendment work.

When that baseline erodes, when that foundation crumbles, we are left with license, not liberty, and we’re in a place similar to Rome in its decline. We’re not there yet, but I do think one can make a strong case that we’re on the way. When the President of the United States has people prepared to defend him for dallying with an intern nearly his daughter’s age, I think we’ve got real problems, and that our culture of self-indulgence has gone too far (perhaps you agree).

The Supreme Court’s opinions in Johnson and Eichman are symptoms of a view of law that self-indulgence is all the Constitution is about — a problem in many other opinions as well. If that view continues to be the dominant view in Constitutional law we are, I submit, in real trouble, and eventually the underpinnings of the Republic will erode to a very dangerous point. The Flag Amendment alone won’t stem the tide, but it will represent a step in the right direction, I think.

To Stephen Presser:

The court has long held in other matters that conduct may constitute a form or speech (or expression)– to wit the case back in the 30s about flying a red flag. I don’t think it’s honest to toss into the mix that “taking potshots at the President… might have an expressive component.” Such conduct is rightly prohibited no matter what the motives of the shooter; similarly it’s rightly against the law to spray paint “God Bless America” on the Lincoln Memorial.

The fact that 49 states have passed measures favoring flag protection simply demonstrates that legislators in 49 states have their fingers to the wind on this issue. Some legislator puts up a bill and the other legislators, reading their polling data, see no percentage in voting against it.

I don’t think this is an issue in which passions run particularly deep outside the Citizen’s Flag Alliance, and so to say that “this an issue of great national interest” overstates the case dramatically and purely for effect. What was the great national reaction last time this amendment died the death it so richly deserved?

You toss murder and arson into the discussion, tempting me to do my best Reagan chuckle and say “There you go again….” The death of a human being, the burning of the private property of another or of public property… these are results that the assumption is are, prima facie, bad or negative results.

Let’s take this argument from you: “If flag desecration is an act designed to cause outrage and possible breaches of the peace on the part of viewers, than you punish the motive to cause outrage and possible breaches of the peace, not the political sentiments.”

Explain to me why this very idea would not apply to someone standing on the corner of State and Madison with a bullhorn shouting, “I hate the flag of the United States! It is a terrible flag and stands for rotten things. I would spit on the flag if I had one here! I would defecate upon it. I would tear it to shreds and dance a Russian jig upon it!”

Should *that* be prohibited on the grounds that it would “cause outrage and possible breaches of the peace?” What if one were to go to a convention of Young Communists and, as they left their hall en masse for a people’s lunch, waved the American flag in their face or sang the Star Spangled Banner in an attempt to “cause outrage and possible breaches of the peace?”

Or what if, inside this Young Communists convention, a speaker, to the delight of all in attendance, burned an American flag in an attempt to get the biggest round of applause of the day? He would not be trying to cause outrage or a breach of the peace, after all.

I actually do agree with you that the connection between rights and responsibilities is important and society needs that. But even though “civility” is desirable, the First Amendment doesn’t limit us to civil expressions that cause, perhaps, a bit of upset for the listener but no real outrage.

To Eric Zorn:

We may have reached the point at which we start talking past each other.

I agree that the First Amendment means that we don’t forbid speech even if it outrages people (although, as you know, we do make limited exceptions for “fighting words” or deliberately yelling fire in a crowded theatre when you want to cause panic and distress), but I do believe that you can draw distinctions between outrageous acts which are not protected and outrageous speech which is.

It’s true that the Supreme Court has held that some acts constitute speech, and I’d go even further and say that at some level all speech is acts. Still, you can draw lines, until 1989 flag desecration was on the “act” side of the line, and I think that’s where it belongs.

I completely disagree that it’s wrong to make an analogy to shooting at the president or spray painting slogans. We prohibit those acts because we believe they do harm — and the point of the proponents of the Flag Protection Amendment is that if we allow flag desecration we harm something precious as well.

I have to admit that I don’t find it easy to persuade anyone hostile to the amendment on this point, and I’ve come to the conclusion that one takes a position on this issue as a matter of the heart rather than the head (on both sides), but let me try again.

If you listen to the testimony of most of the medal of honor winners and the gold star widows and the veterans, you understand that the flag, for them, symbolizes not only everything that’s good and liberty-loving about the society, but most specifically the reverence that we have for the self-sacrifice of the men and women who’ve given their lives or limbs for their country, so that the rest of us might enjoy our precious freedoms.

They believe that something that’s precious about the America they grew up in is that the law protects the flag from those who would destroy it in a manner calculated to enrage and insult them and the sacrifice of their loved ones.

If their laws cannot condemn and punish those who set out to do evil in this manner, they have trouble understanding what the sacrifice was for, and trouble understanding why they should ever want to sacrifice again.

Try convincing a World War II or Korean War veteran that he or she should fight in order to protect the right of a Wisconsin teen-ager to defecate on the flag. (And don’t tell me that public health laws are enough to protect against that, because the Wisconsin Supreme Court ruled that Texas v. Johnson means the act is protected by the First Amendment).

Not all veterans or widows feel this way, of course, but the vast majority of the veterans and widows I’ve talked to do, and I get letters from them telling me I’m crazy to think that the Supreme court would ever hold that flag burning was protected by the First Amendment. They simply can’t believe the Supreme Court did what it did.

People of our generation find this hard to grasp, and so does Justice Brennan and his majority of five, apparently. Brennan says the flag stands for the right to burn it, and the proponents of the amendment think it does not.

You are absolutely right that the First Amendment doesn’t limit us to civil expressions. The speech that’s protected by the amendment can be downright uncivil, but even then reasonable time place and manner restrictions apply.

Even if I thought that Flag desecration was speech, and I don’t, I would see the Flag Protection Amendment as in the nature of an appropriate time, place, and manner restriction, and would hope that if you became convinced that the vast majority of your fellow citizens saw it the same way, it would be appropriate to defer to them when they had a Constitutionally-prescribed majority to overturn Texas v. Johnson.

Or, I would hope that your view that responsibilities are as important as rights would eventually lead you in my direction on this issue.

This is not simply an issue for politicians. In fact, my experience is that politicians actually prefer to shy away from the Flag Amendment, because every time one comes out in favor he’s pilloried by a press unanimous against it.

It’s very much a people’s issue. It’s true that the Citizens Flag Alliance has been leading the way, but their support comes very much from the grass roots.

Are we getting any closer to agreement?

To Stephen Presser:

It doesn’t surprise me that your contention “if we allow flag desecration we harm something precious as well” fails to stir those of us who are “hostile to the amendment.” It’s because you are trafficking here solely in the realm of thoughts and ideas, and the very notion that the expression of John Smith’s political idea in a way that causes no physical harm to anyone and otherwise breaks no laws can cause such harm to Stephen Presser’s political idea that we must amend the constitution to prevent Mr. Smith from making his expression is pretty horrifying. It has no logical–reasonable–underpinning.

It is no step at all from that premise to the one that says my hypothetical lunatic on the streetcorner saying bad things about the flag ought to be muzzled as well. And not too far from that to the idea that, say, the Ayatolla was right to issue the fatwah against Salman Rushdie…. some ideas must be suppressed!

You–or rather Dan Polsby, for this is his formulation–seem very comfortable with the idea that we can draw a neat little line around the American Flag and that will be that. I see it as the thin end of a bad wedge, the nose in the camels tent and all other relevant cliches precisely because there is only emotion, not logic behind it.

It is “a matter of the heart,” but only on your side. I love the flag too. Fly it on many occasions. Your stories about gold star widows and veterans are moving to me–but so is the story of the Vietnam Vet POW who testified against the amendment by saying that when his captors tried to torment him by showing him pictures of hippies burning the US Flag and saying “look what kind of country you live in,” responded, “Yes, look what kind of country I live in….a free one.” (I paraphrase; exact column on this subject available upon request.)

Reasonable time place and manner restrictions on burning of symbolic objects or any objects could easily exist if they were content neutral.

There is an old cold war era joke about the Soviet and the American arguing about whose country is better. “In my country,” says the American, “I am allowed to stand on the steps of the seat of my nation’s government and scream `The President is an idiot!”

“Ah,” says the Soviet. “In my country it is very much the same. I, too, am allowed to stand on the steps of the seat of my nation’s government and scream, `The American president is an idiot!”

Your support for the apparent super-majority interests me. Is there no amendment that might be supported by 70 percent of the public that you would raise your voice against, or is this the standard by which you judge appropriate political action worthy of your support?

And lastly, on a practical level, what is “the flag?” The Citizen’s Alliance ducked this question big-time when last I posed it to them and the idea seems to be that we will be able to work it all out when the time comes.

But there are American flags in all forms everywhere–on your Tribune masthead, for instance. Can a person burn his Tribune in a home incinerator? What if he does so while chanting or just thinking, “Burn, you no good flag!!!”? Photographs of the flag? Flags with 49 stars and 12 stripes? Drawings of a flag? And what language would we use to define desecration?

And, lastly, the question still outstanding from my last post–where is the urgency here?

To Eric Zorn:

I‘m delighted you want to continue the dialogue. Perhaps we’re not as far apart as I thought. On the other hand, maybe we are. Polsby (I’m inferring this from what you say) and I can draw a line between First Amendment speech (“pure speech,” whatever that is) and actions taken to destroy the flag in a manner calculated to cause outrage to others (the definition of desecration).

It all comes down to whether you think burning, defecating, urinating, or otherwise defacing the flag is speech. If you do, you take your position, and that’s that. And you’re certainly not alone in that.

But if you take speech as something with a clear content and something more than, as Rehnquist called it, an inarticulate grunt, you might be closer to the view of the proponents of the Amendment. You believe that befouling, desecrating, burning or otherwise tormenting the flag is “the expression of John Smith’s political idea in a way that causes no physical harm to anyone and otherwise breaks no laws…” but you assume the very point at issue — granted the heartbroken veterans, widows, and orphans who are the backbone of the Citizens Flag Alliance are not physically damaged in the same way that victims of assault and battery are,” but that doesn’t mean they are not hurt in a manner that the law now recognizes on a number of fronts, including intentional infliction of mental distress, sexual harassment, and lots of other torts existing and still to be born.

To assume that such action “breaks no laws,” is to assume the very point at issue. Until 1989 it certainly did break some laws, and had for at least a century. The Supreme Court got it wrong in 1989, and it breaks no laws now, but this Amendment effort is about putting us back to where such conduct “does break laws.”

What you call “Stephen Presser’s political idea,” is both yours and mine — it is the idea of the founders that “we the people” are bound together by certain ideals and that we owe each other consideration and respect — enforceable by law which is ultimately the only way we can bind each other.

We have decided that in our society one can say whatever he likes, but we draw lines between acts and offensive actions, always have, and always will.

Let’s address your slippery slope argument head-on, as, I suspect, Polsby does (mind you he and I have only discussed this issue once, and then only to exchange about four words). If this Amendment passes it will have absolutely no – zero – effect on any speech protected by the First Amendment. We will simply be returned to 1989.

There will be no Amendments actually affecting speech, because you will never get 49 state legislatures much less 2/3 of the House and Senate to request them. As you know there have been about 11,000 Amendment proposals brought before Congress and only 27 of them have passed. It won’t get any easier if this one does. That’s why your “nose in the camel’s tent” (I think you mean camel’s nose in the tent) or your thin end of a bad wedge arguments make no sense. No one is setting out to contain real speech, no Amendment attacks the First Amendment.

You can do better than that “scare tactic” of the Flag Amendment’s opponents. If you really believe this, than I’m right that your side is arguing from the “heart” rather than the head, because there’s no logic in the slippery slope argument.

Now let’s take the “urgency” argument. Edmund Burke said (as you undoubtedly know) that all that is needed for the triumph of evil is for good men to do nothing — if we all agree that desecrating the flag is an evil act (and I know of no one who contests this) — than if our legal system permits it, and if, as I believe, we’re undermining important elements of our political tradition to let it go unchallenged, than every day we fail to act further erodes the foundation of order that I really do believe undergirds the Republic. (You might want to take a look at the recent testimony before the Senate of Harvard Law Professor Richard Parker who makes the same point). Since 1989 there have been approximately 50 cases of flag desecration, most of which go unreported in the national media, which, since it’s perfectly legal, doesn’t treat it as a big deal.

As my friends in the Citizen’s Flag Alliance say, each time that happens the respect for what the flag stands for is, in their eyes at least, further diminished.

Perhaps it’s not diminished in the eyes of those such as Justice Brennan who simply suggest that it shows what terrific people we are because we’re so tolerant. But tolerance has limits, we shouldn’t tolerate everything that betrays what we stand for, and I draw the line in a place that permits legislation against flag desecration. Perhaps I shouldn’t have said what I said about this being an issue of the heart — I think there’s at least as much logic on my side as yours, but if you can’t see that there’s a difference between First Amendment speech as traditionally considered and flag desecration, perhaps nothing I say will seem logical.

If 98% of the American people were for something I was against I would still speak out against it, but when that percentage of legislatures speaks I do think it’s worth listening too. I used to think the issue was trivial (just like you), but I don’t any more. I do think that the popular sovereignty argument is a pretty powerful one to make, and while the people make mistakes, the collective people is more often right than the law professors or perhaps even the pundits. On this last point, I was recently reminded by my wife (who, by the way, urged me to make contact with you — I was just going to let your column lie, being an easy-going sort) that Tommy LaSorda — that great Federalist Constitutional Scholar who recently testified at the Senate Hearings — was asked why Flag Desecration shouldn’t be protected by the First Amendment. He said, “Free speech is when you talk.” He had a point.

Finally the “what’s a flag question.” This one, too, is beneath somebody as clever as you. A flag is that thing we run up the flag pole to see if anybody salutes. It’s not the emblem of the Tribune, nor is it the flag bunny slippers or even the flag boxer shorts. We can quibble about definitions if and when the Constitutional Amendment passes, but I suspect we could agree on “what’s a flag” pretty quickly.

To Stephen Presser:

Rehnquist was absolutely wrong when he equated flag burning to an “inarticulate grunt.”

An inarticulate statement would be, in the words of my thesaurus, “unclear, unintelligible, indecipherable.” It would prompt confusion on the part of the observer, as would an anti-American speaker chivvying passers by at State and Madison in Dutch.

The point of view communicated may not be subtle; it may not be wholesome, and it may not have “clear content,” but I daresay half of what passes for commentary in the media would fail that test.. But it is exceedingly comprehensible to those who observe it. Too much so, indeed, would be your argument.

On what grounds would you ban an action whose sole purpose and result is “to cause outrage to others” but not speech with the identical purpose? Because the action is a stronger, more provocative way of communication, and we must limit the strength of expressed points of view?

You imply that you believe the contention that “burning, defecating, urinating, or otherwise defacing the flag is speech” is somehow at odds with reality. Substitute “speech” for “expression” and I ask you what else it could be aside from that? Why is it of the least interest to anyone if it is not an expression?

The string music swells at the invocation of “heartbroken veterans, widows, and orphans,” but this is exactly what I meant in my column by “emotional appeals to low jingoistic impulses that have put this amendment closer than ever to passage by Congress.”

The price of free expression is that sometimes it offends people–good people, decent people. I know you would agree with that. And to equate the inner disturbance that a person might feel at another’s expression of a contrary political sentiment with sexual harassment or to lump it in with intentional infliction of mental distress…! I thought you conservatives frothed at the mouth over the “victim mentality.”

When you contend that “We have decided that in our society one can say whatever he likes, but we draw lines between acts and offensive actions, always have, and always will.” I would like a few examples–one even–of neutral or positive acts at which we “draw the line” and say they are illegal based solely on the intended message conveyed by the action.

My slippery slope argument works this way—once an amendment to the bill of rights enshrines, in effect, the right of the state to curtail the purely symbolic act of flag desecration, there is plenty of likelihood that the courts could uphold local laws passed preventing other sorts of symbolic desecration.

Say the Flint City Council in cahoots with GM during a strike passes a law against desecration of the GM logo. Tangential? I don’t think so. Because here’s what’s going to happen if you get your amendment passed: You will see a spate of protest flag burnings in this country like you haven’t seen before, most of them directed at the amendment itself. Ultimately you’ll have a case prosecuted in which a protester burned an “I Can’t Believe It’s Not Old Glory!” flag facsimile with, say, lavender stars, not white stars.

He will try to quote Stephen Presser: “This one, too, is beneath somebody as clever as you. A flag is that thing we run up the flag pole to see if anybody salutes.”

But then, as he reads further into your work, he’ll discover that it’s not the cloth Presser wants to protect, it’s the people who are upset by symbolic contempt shown to that piece of cloth.

And if *they* don’t know it’s not a flag, then protester is guilty (Stevens used a different form of logic in his dissent to Texas v. Johnson, I believe, saying someone could be guilty of flag desecration even if he were attempting to destroy it respectfully if his action were misunderstood by viewers… astonishing assertion, I thought). And if we use the “cause outrage to others” standard, the application starts to go across the board.

What you fail to acknowledge is that “The Flag” is an abstraction. A wonderful one, but an abstraction. The symbols for it–decals, logos, pennants of bikes in parades–can be destroyed and desecrated or celebrated and honored.

The Citizen’s Flag Alliance and others try every evasion to get around the fact that a flag is not The Flag, and that definitions here *are* important. Your tactic was to be patronizing “…beneath someone as clever as you…. I suspect we could agree on “what’s a flag” pretty quickly” but it is a real issue.

Kids were arrested in 1960s for wearing flag patches on their clothes and flag designs on their shirts. Patches, mind you. Not things that were raised up a flagpole. So I re-issue you the challenge since you think you can do it so quickly. What do you think a protected flag ought to be?

I don’t think that desecrating the flag is an evil act. I think it’s an ignorant act and politically bizarre. I reserve a term like “evil” for stronger matters.

When you write “every day we fail to act further erodes the foundation of order that I really do believe undergirds the Republic” you are simply giving me more ammunition for when I next quote you. By your count we have about 10 cases of flag desecration a year in a country of 260 million people.

To the extent that anyone notices, I’d agree with Brennan that it shows not what a tolerant people we are, but what a free people we are. Any skanky old dictatorship run by any tin-pot despot can ban flag burning. It takes a great country to permit it.

When you write “Tolerance has limits, we shouldn’t tolerate everything that betrays what we stand for,” what else might fall into this rubric for you? Limit yourself to legal acts only, please.

State legislators, FYI, are generally *more* stupid than the average person, not less. So you might want to re-think your wonderment at 49 out of 50 state legislatures passing a piece of feel-good legislation.

And lastly, I too, was struck with Tommy LaSorda’s testimony—most notably that they had to go back to the mid 1970s to find an incident of flag desecration high profile enough that a witness to it might have something to offer. Alas, LaSorda didn’t. Even you have acknowledged that speech is more than “when you talk.”

To Eric Zorn:

Thanks for your last post. It will take some time to reply to all your contentions, but I thought I’d clear away some of the underbrush first.

Your last post was mostly about “expression.” Have you shifted your ground now so that it’s no longer important to your argument that flag desecration be “speech?” If so, then there’s not too much we have to argue about, because it’s only expression that can be construed as “speech” that comes within the First Amendment. Or is it your position that all “expression” is speech?

How seriously should I take your suggestion that “State legislators, FYI, are generally more stupid than the average person, not less?” Do you have IQ tests for state legislators? My anecdotal data apparently differs from yours. My model state legislator is closer to my colleague, Dawn Netsch, who is one of the smartest people I know.

You seem to want to label arguments you don’t agree with as “emotional appeals to low jingoistic impulses” or, as you did in your column, simply irrational. But my basic notion, that American society is as much about responsibility as rights, and that liberty is undergirded by duty and civility, which informs all of the arguments I’ve tried to make to you, is not, I think, particularly emotional or jingoistic, though you seem to construe evidence of others sharing that view as such.

I don’t believe that you simply label everything you disagree with as “irrational,” but that seems to be the thrust of your column and some of our discussion. Help me out here, please. Do you still adhere to the view that no rational person could be in favor of the Flag Amendment? Let’s make it easier on you, do you adhere to the view that no rational person could have dissented in Texas v. Johnson?

If your answer to that one is no, and you’re prepared to concede rationality to Rehnquist, O’Connor, Stevens, and White (and Black and Warren, who took the same view), then all we have to do is ask, is it rational to want to amend the Constitution to bring the law of flag desecration back to where it was before the majority decided Texas v. Johnson — again (because all we’re doing is exploring the assertion in your column) not whether it is right, but rather whether it is rational. Then we can go on to debate wisdom, once we’ve got rationality established. And I’ll try to give you my flag definition again.

To Stephen Presser:

All my writings on this topic have favored the word “expression” over the word “speech” because I am sick to death of the Tommy LaSorda argument.

“Speech” is not just the words that comes out of one’s mouth. It would be my contention not that all expression is Constitutionally protected speech, but that the intent of the Constitution is that restrictions on expression be content neutral or free of ideological or religious bias.

To trot out my old example, it should be equally against the law for me to spray paint “The USA stinks” of “The USA forever” on the Lincoln Memorial.

Don’t take me too seriously about state legislators. There are some bright ones (whose side is your colleague Dawn Clark Netsch on in the flag issue?). Many, however, are craven, invertebrate political hacks with no recognizable principles.

Let me try to be more surgical in my critique of the pro-amendment position. I do not quarrel with your contention that “American society is (or ought to be) as much about responsibility as rights, and that liberty is undergirded by duty and civility,” though I think my political definition of civility is different from yours.

When I speak of emotional appeals I speak of your invocation of “heartbroken veterans, widows, and orphans,” your recitations of all the wonderful things for which the flag stands and how much it means to people and your apocalyptic visions.

I acknowledged yahoos are free to desecrate a flag in protest every year. I believe that a rational person can hold the contrary view, but I don’t believe that his or her rationality has yet found a voice in the expression of that view.

So that while Rehnquist, O’Connor, Stevens, White, Black, Warren and Presser are all obviously learned and clever folk, I do not feel, with all due respect, that one can find much evidence of this in their pro-amendment arguments.

I feel that the arguments make a huge and utterly unjustified leap to draw a line that makes no logical sense around a particular kind of political expression in order to forbid that expression.

And when I poke and prod at these arguments, as a medium such as this allows me to do, I find the whole idea ill defined. Which is why I await eagerly your definition of “flag.”

Pretend you are a state legislator, one of the smart ones, and are writing a statute now that the amendment as passed the Congress and the states. Before you define what desecrative acts are forbidden, how do you define “flag?”

To Eric Zorn:

Perhaps we’re nearly at the end of our exchange. I think we’re coming close to the point where we agree on where we disagree. Perhaps I can’t persuade you that the proponents of the Amendment have a rational argument on their side, but it won’t be for lack of trying. Let’s take a look at the points in your last E-mail.

Your final point (which I now understand better) is that the issue is just too squishy. You believe that one can’t even define “flag,” so that there can be no logical anchor to the proponents of the Amendment. I tried to suggest that a flag was what you run up a flagpole, but that apparently wasn’t satisfactory to you (although I’m not sure why not). If you won’t accept that, would you accept “the term ‘ flag of the United States’ means any cloth flag of the United States, in a size fabric and form that is commonly displayed?” That’s about as precise as I can get, and I think at least shows that a rational (not necessarily a perfect) definition is possible.

Now let’s assume that we can define flag, as I believe we can (or we can agree to disagree). I’m sure there’s more that makes you think the proponents of the Amendment have no rational argument, to wit your statement that ” the arguments [of the proponents of the Amendment] make a huge and utterly unjustified leap to draw a line that makes no logical sense around a particular kind of political expression in order to forbid that expression.”

First of all, the line (and I agree that this is all about drawing lines) is not to forbid the expression of a political point, but to forbid an act (which you believe expresses a political point). It is the act (the form of expression) rather than the content of expression that is prohibited. Other forms of that expression — notably verbal or written speech — are still left completely permitted.

Second (and this is Polsby and Rehnquist’s argument) there is no “huge and utterly unjustified leap that makes no logical sense” — there is simply an attempt to return Constitutional law to where it was for a century — a position it occupied because of the unique and historical character of the flag as the national symbol. We can disagree about precisely what it meant, but we can’t disagree that for a century to desecrate it was regarded as an act criminally punishable.

To rely on a century of practice is not to guarantee reliance on truth, I’m willing to concede, but to rely on practice is not irrational either.

Finally your last (actually your first in the E-mail point): “It would be my contention not that all expression is Constitutionally protected speech, but that the intent of the Constitution is that restrictions on expression be content neutral or free of ideological or religious bias.”

This means that we’re agreed that not all expression is First Amendment speech, and that the trick is to draw the line to say what is and what is not, but then you make an interesting turn away from that issue to say, in effect, that whatever speech is, the Constitution is about expression and that only content neutral etc. restrictions on expression are permitted.

I’m willing to agree that the test is Constitutional intention (I’d describe it as “original understanding,” and perhaps we can agree on that as well). But I know of nothing in the history of the First Amendment as conceived by its framers that states that “restrictions on expression be content neutral or free of ideological or religious bias.”

Granted this is the view of some Senators (Joseph Biden is one) and perhaps some Justices (e.g. Brennan), but I don’t think a convincing case can be made that this was the intent of the First Amendment. Again, it dealt with speech, not expression — expression was a term available to be used, and it was not –and the notion of “content neutrality” is very much a modern one, at least as applied to restrict the government.

Remember again, our argument (if I understand you now) is not necessarily about the wisdom of the proponents of the Amendment, but their rationality. They have history, practice, and, I believe, justice on their side. I think that amounts to “rationality,” but if you disagree than we can agree on what separates us.

To Stephen Presser:

I’m left a little unclear now about what you consider the justification for laws considering this particular act. On the one hand you seem to justify it by saying we must forbid acts that cause outrage in others, then you veer back to defining a flag in fairly narrow terms–terms that, if I recall my youth in Ann Arbor correctly, were far broader when the sheriff of Washtenaw county was arresting “hippies” for wearing shirts with flag designs on them or flags with peace symbols where the field of stars usually is–that would not very neatly control this sense of outrage.

I return again to the question that you dismiss as unworthy of me, which is what do we do about a protester who sews a flag with 49 stars and twelve bars and then burns it in the town square while screaming “America sucks!”

You seem to think this is a trivial question, but I wonder which Presser standard would apply– the flag as that which is of a form commonly displayed (not guilty!) or the public outrage standard (guilty!). It’s interesting to consider intent when examining Constitutional questions, as I need not tell you, and the question of intent…the precise question…still eludes me here.

It’s an important question because, as you also well know, in future generation justices yet unborn will be confronted with semi-analogous situations and asked to apply the Constitution to them, to look for the gist or the essence or the philosophy behind the principle elucidated in the document and its amendments. So in 100 years when a state passes a law against burning the presidential seal or a copy of the constitution or its own state flag, the justices will look not just at the cold words of the document, but will attempt to apply them to the new situation.

Certainly one need look no further than the First Amendment, which applies not just to “speech” and “the press” (which we would now translate at “the media”) but to a variety of communicative forms, some of them unforeseen, and not to other forms. They had crowded theaters in the 1790s and could easily have stuck in the prohibition against shouting “fire” in them. The language was available. So, please: Intent.

You suggest that content neutrality is not implicit in the First Amendment in your view. I’m intrigued by this assertion because I wonder at its implications. Do you mean to say that it’s your view that both the original intent (or understanding, as you prefer) of the Constitution and its proper application today would have us granting various degrees of freedom of speech depending on whether the point of view expressed is popular or mainstream or coherent enough to pass a certain muster? Or am I missing your point there?

I’m not exactly persuaded by the argument that flag desecration was forbidden for many years therefore it must be rational and the intent of the Constitution, just as you are not persuaded by the argument that respect for the USA has not internally eroded since 1989 on account of 10 flag defilements a year. I don’t think segregation was rational, either, and that seemed OK to a lot of people for many years, too.

Finally, are you at all ill at ease with the term “desecration?” One can technically only desecrate that which is sacred. Is a flag, the object itself, sacred?

Do we worship or revere a flag? This would seem to me to be at odds with the Judeo-Christian commandment concerning graven imagery—not that I am one for applying scriptural passages to constitutional arguments, but in some ways the whole idea of what I call flag fetishism is at odds with our dominant religious traditions.

To Eric Zorn:

Your last E-mail gives me an opportunity to summarize my arguments. Let’s remember what we’re debating – it’s your assertion that there are no rational arguments in support of the Flag Preservation Amendment.

That was the thrust of your column, my job is to get you to to ameliorate your position. I’m also assuming (as I have in previous posts) that rational doesn’t necessarily mean correct, and lawyers use rational to mean merely something not irrational, that is something supported by reasons.

We distinguish rational from reasonable, by the way, as is true for example, with the business judgement rule, so that a rational argument (one supported by reasons, and thus not arbitrary) might not necessarily be a reasonable one.

My feeling, though, is that the arguments in support of the Flag Protection Amendment are both rational and reasonable, so if you want to move to the higher standard, I’ll live with it. Let’s try to make the rational (or even reasonable) case for the Amendment.

Let’s begin with your last point, the one about “desecration.” The text of the Amendment is “The Congress shall have the power to prohibit the physical desecration of the Flag of the United States.” If it passes desecration is part of Constitutional law, as you quite properly suggest. I’m not at all uncomfortable with this.

As you suggest desecration implies that the object defiled is one that is held sacred, but this is precisely how the flag ought to be regarded. Over the last 200 years it has been, I believe, our one secular sacred symbol. The notion of something sacred in American society is not as strange as it may appear to some people (e.g. you) these days.

After all, the last line of the declaration of independence is “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

You might be tempted to point out to me that the Framers of the Declaration said nothing about flags, but my point is that the flag is a literal embodiment of that sacred honor, and, until recently was recognized as such. Thus, one reason (e.g. a rational argument) for the Amendment is to re-affirm that there are some things that ought to be sacred in American society.

The arguments that you have described as jingoistic rhetoric, or hearts and flowers stuff, that I have made in prior E-mails, about how the flag, especially to widows and veterans, embodies the self-sacrifice of the fallen brave in the service of their country, is really simply another way of stating the sacred honor point.

We hold the sacrifice of those who fought to preserve freedom for all of us to be something sacred, and the flag embodies that (just ask the majority of veterans who support the Amendment).

That’s what the flag means to most of the supporters of the Amendment. The flag does not, then, as the Supreme court majority wrongly believed, stand merely for the freedom to desecrate it. O.K., then, point one, the Amendment is good because it reaffirms the need to hold some things sacred in society, particularly the sacrifice of men and women who have given life or limb in the service of our liberties.

Now we come to a subsidiary point. You have asked, what’s this Amendment all about – is it about preventing outrage, or is it about protecting the flag? It is manifestly only limited to the latter. We are after a recognition of the unique status of the flag as national symbol deserving of reverence and respect.

This doesn’t mean that all outrageous acts involving representations or similes of the flag should be subject to punishment, however. Indeed, in the interests of maximizing liberty (something you and I are both concerned with) I’d favor a narrow definition of the flag, which is why I crafted one for you.

I’m not interested in preventing all outrageous acts, I’m interested in a carefully crafted approach to protecting the flag. Outrage is an element of the crime of desecration, as you understand (Black’s law dictionary states that the offense of desecration “consists of defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover his action.”) But I’m after a particular act causing outrage, and not all such acts. Narrowing the definition of flag to its precise and clear meaning is just fine with me.

This means that I think your sheriff of Washtenaw county was wrong, and that a new Amendment wouldn’t give him license to do the wrong things he did before. Point two, then, it’s possible to craft a statute, once the amendment passes, that is limited in scope and doesn’t infringe on traditional First Amendment freedoms.

Point three is a repeat of my earlier rejection of your slippery slope argument. The Flag Protection Amendment will not do anything that would justify prohibitions on burning the presidential seal, or a copy of the constitution, or a state flag.

As you are, I think, I’m a strict constructionist — the Amendment is limited to the one unique historic symbol of the nation. It will provide no precedent for any future Amendments, and will make none easier, because they all have to go through the same procedures. This is the Polsby and Rehnquist — the flag is unique — argument. It is a wholly rational, I believe even a reasonable one.

Point Four is one I haven’t exactly made clear to you in the past, but I hope it was implicit in some of my emails. That is that for popular sovereignty to flourish in the country, and I think we both agree that it is the basis of American government, it is the people who have the ultimate responsibility for shaping their constitution. When the Supreme Court wrongly construes the document it is the right, I’d even say the duty of the people — at least where the matter is an important one – to set things straight.

That’s what happened with the Thirteenth and Fourteenth Amendments (slavery and equal protection), and what also happened with the income tax (sixteenth? amendment) and a few others. We can argue about whether this is an important issue, but I do believe that many Americans feel that it is — that is that there ought to be some things sacred in society, and the flag is one of them.

That’s why you get 49  state legislatures asking for it (and apparently you’re now prepared to concede that there’s a possibility that not all the legislators are hopeless bozos). Thus this argument is grounded on principles of popular sovereignty and on a desire to send a message to the Supreme Court. As you may know, by the way, the sending a message to the Supreme Court argument persuaded the Wall Street Journal (alone among major newspapers) to endorse the Amendment.

A fifth reason (not, I believe, as important as the others), related to the Fourth is to remind the court and society that even the First Amendment has limits. This is the point about it being possible to draw distinctions between speech and acts. You don’t believe that such a distinction can be drawn in this case, but I do, and so did Black, Warren, Rehnquist, and Fortas, of all people.

This is related to a key point made by Richard Parker, that acts that destroy the essential community among citizens (he views flag desecration as such an Act) make First Amendment communication more difficult if not impossible.

I’m not articulating this as clearly as I might, perhaps, but his point is that true friends of the First Amendment, like you, ought to support this Flag Protection Amendment because it helps build the essential basis for communication, a shared understanding of community.

That’s five reasons I find which at least show rationality, and I find them quite reasonable. Are you ready to agree that one can be rational and still support the Amendment?

Again, the point we’ve addressed is not “But aren’t there still things a clever citizen (e.g. Zorn) can come up with that suggest problems with the Amendment or its implications for First Amendment doctrine (e.g. its effect on notions of content neutrality),” the point is “Can one advance a rational argument in support of the Amendment?” I think one can, and the Amendment’s advocates have.

Forgive me for going on at such length, and I look forward to hearing from you further.

To Stephen Presser:

I am at last ready to agree with you that we have about reached the point where the only thing left to do is repeat ourselves in hopes that *this* time the lightbulb will go off over the head of the other and we will make plans to link arms and lead the WOOGMS parade together next year.

I agree that you have reasons for your point of view, and if having reasons for one’s point of view is the definition of a rational argument, then I concede the point. Generally, when I disagree with someone on a controversial policy issue and we poke and prod away at what the source of the disagreement is, we come to find that we simply give different weight to different factors and evidence, but that both positions can hold up and even flow rather naturally from the differing premises (and ultimate aims) which tend to have coherence all their own.

In this case, however, as frustrating as you may find this given the effort you have put into explaining your point of view, I see the only thing driving your point of view is an emotional reaction to a United States flag–that everything you throw up after that is a transparent, unworkable and unnecessary attempt to codify that emotional reaction into law.

Those are reasons, but they don’t pass muster with me as an argument. Maybe that’s why so many newspaper editorialists–including from many conservative and mainstream publications such as this one–and so many commentators don’t agree with you (giving your side the opportunity to label your opposition as “elite” — always a tasty hunk of red meat to throw into a debate when the intellectual tide is against you).

Here’s a point I wish you’d address. You claim that there is or ought to be secular sacred things in our society. Something that conveys “the self-sacrifice of the fallen brave in the service of their country…. the sacrifice of those who fought to preserve freedom for all of us.” This concept, then, to you, falls outside the protections of the First Amendment. Why would you stop at the banning of a mere symbol?

Why would not use the same argument to support the criminalization of the dissemination in any medium of the sentiment “Phooey on the self-sacrifice of the fallen brave in the service of their country and the sacrifice of those who fought to preserve freedom for all of us. Those people suck!”?

Why *not* push for an amendment to allow states to forbid that kind of speech too? It wouldn’t be a slippery slope, would it? What would the problem be with it, aside from a self-referential problem dealing with amendable document itself?

A point: You say this amendment is all about protecting “the flag.” No. It is about protecting “flags.” The Flag is a concept. A Flag is a physical object. And so we’ll forget about the justification you adduced earlier that we must stop the defacing, damaging, polluting or otherwise physically mistreating U.S. flags because it causes outrage. If it didn’t cause outrage–if it were done in secret and discovered only by law enforcement officers with a search warrant–it would still be a crime in Presser’s ideal world.

You mistake my slippery slope argument. I’m not saying this will lead to more amendments. I’m saying that the court in the future might easily say, “Well, since the `reasoning’ behind this Amendment was purely emotional and protesters have switched over to burning copies of the Constitution and now that provokes an emotional reaction, then the law in Pippa Passes Ky. forbidding the burning of a copy of the Constitution is constitutional.”

You know as well as I that the court looks beyond the cold words on the page for the ideas behind them (thus we didn’t need new Amendments to redefine “press” to include electronic media that do not use printing presses, etc. etc. )

Slavery and equal protection were urgent issues impacting the daily lives of millions. To compare them to this trifle, which is really all it is, is highly silly. You and I both know that, the polls notwithstanding, there is no big groundswell in this nation about this amendment. It’s not on people’s minds much except when the provocateurs like thee and me put out our arguments. Ask people to make a list of the top 25 problems in this nation and I promise you that if you survey 1,000 people, flag desecration will not be on it. It probably wouldn’t make the top 100.

I’ll bet if you were to ask these same people today for 10 laws they’d pass if they could (and you didn’t remind them of this flag stuff) they wouldn’t come up with it. A difficult experiment to do, but do you doubt me?

You might be able to get a similar vote or poll result from people asking them to make the pledge of a belief in God mandatory to holding public office. In fact, I’ll bet you could. There would be some popular sovereignty for you! Any problem with that?

If Parker says “Acts that destroy the essential community among citizens (he views flag desecration as such an Act) make First Amendment communication more difficult if not impossible,” and you believe him, then why would this same logic not apply to speech that destroys the essential community among citizens? It would. And your distinction becomes arbitrary. Based on emotion, not logic.

Your assertion that “the Flag Protection Amendment….helps build the essential basis for communication, a shared understanding of community” makes absolutely no sense to me. Again, it’s the liberals who are always charged with wanting to use the big hand of government to do social engineering, and now along comes the conservative law professor to impose a “shared understanding of community” because he believes it builds the essential basis for communication.

But, again, I get back to my opening assertion , which is that we have probably reached the point where this debate will always end up—standing across a chasm lobbing points at each other that fall short of their mark. I’m willing to go on if you are if it will clear up some of the minor points and challenges.

To Eric Zorn:

Time to try to bridge the chasm again (I like your metaphor). I agree that it’s probably wasted effort, but I admire your spunk and your willingness to keep at it, so I’ll try once more. By the way, I don’t see a chasm completely dividing you from you to me, I think I understand your point of view pretty clearly — it is (correct me if I’m wrong):

  1. This is a trivial issue
  2. It’s based on emotion, not logic
  3. Anyone who wants to oppose flag desecration acts, to be consistent, ought to oppose speech critical of the flag.
  4. If the flag amendment passes it will serve as ammunition for some judge down the line who wants to restrict acts of speech unrelated to the flag.

So here are my yells across the canyon to explain my position, and even try to suggest my views are reasonable, as well as rational (I’m glad to have the rational point conceded now).

  1. Zorn: This is a trivial issue.

Presser: If you mean by “trivial,” that it’s not one that the American people (without appropriate prompting) put on their top ten list of the country’s problems; I’ll concede that to you.

But I do believe that what the debate over the Amendment really involves, namely the question of whether self-indulgence ought to be the complete basis for Constitutional Law (as Brennan seems to think); whether responsibilities are as important as rights; and whether the American people have an obligation to correct a Supreme Court that has dangerously strayed from the original understanding is far from trivial.

For me the debate is an important struggle in the current cultural war that is going on for the hearts and minds of this and future generations. I see Brennan’s opinions in Johnson and Eichman as of a piece with Bill Clinton’s dalliance with an intern near his daughter’s age. Both are facets of a world view that seems to lose sight of the importance of virtue and character in a republic.

This is my perennial point about the danger to the republic. I understand you don’t buy it; but I think reasonable people could. These include me, Parker, and, if you’re willing to call them reasonable, Orrin Hatch, Henry Hyde, Charles Canady, and a host of other supporters in the House and Senate.

  1. Zorn: This is based on emotion, not logic.

Presser: There is an emotional component to this — all I’ve said about widows and the wounded, the frisson people get when they see the flag, the tears they shed in reverence over liberty – you bet that’s emotion. But it doesn’t necessarily mean it’s not reasonable.

An emotional attachment to values is an inevitable part of holding those values — it’s as true of your libertarian defense of free speech as it is of my defense of responsibilities over rights. I don’t see how you expect to score any rationality or reasonableness points by denigrating an argument as emotional.

Both of us can also rely on logic and history to support our points of view (I can point to Burke and a host of social conservatives in the nineteeth and twentieth centuries; you can point to Mill, Holmes and lots of other folks of that ilk), but neither of our views is free of an emotional attachment; both are passionately held; at bottom both are built on the emotion of hope, as are all human endeavors.

  1. Zorn: Anyone who wants to oppose flag desecration acts, to be consistent, ought to oppose speech critical of the flag.

Presser: I think this is a more developed version of the “emotion” point. I believe you believe that anybody in favor of the Flag Protection Amendment is too blinded by emotion to see that they really oppose speech they don’t like, and they are enemies of the First Amendment.

I find this argument completely illogical. Why can’t someone reasonably believe (I do, Earl Warren did, Hugo Black did, Abe Fortas did, Rehnquist did) that you can be in favor of the Amendment and still be in favor of real first Amendment speech.

Why can’t I defend to the death your right to say anything you want, even if it’s “The Flag sucks,” but say when you defecate on it you’ve gone beyond the bounds of speech into something else. Maybe there is a chasm between us here.

We agree that speech is always an act of some kind, but I think we also agree that not all acts are speech. We can draw a line on a continuum and relegate some to the criminal law and some to the First Amendment, can’t we?

At this point you usually invoke your argument about content neutrality, but that misses the point — content neutrality (whatever it’s coherence or validity as a doctrine, and we can argue about that too, but we don’t have to for my purposes) only applies when we’re talking about speech, not acts. Even the Supreme Court has conceded this by allowing hate crimes to be more severely punished, as it did with the Wisconsin statute.

More to the point, the search for motive in the criminal law generally (as I’ve tried to convince you) means that the notion of content neutrality in non-speech acts has no validity. This isn’t emotion, it’s an objective report about what’s happening in the law.

4. Zorn: If the flag amendment passes it will serve as ammunition for some judge down the line who wants to restrict acts of speech unrelated to the flag.

Presser: I don’t see it; maybe it’s the chasm again. Why can’t you concede the point Polsby (and Rehnquist) want you to concede — that the flag does occupy a unique position in American society and symbolism, and that what happens with the Flag Amendment should have nothing to do with what happens to anything else.

No one sheds a tear when the Constitution is flown up the flag pole, the marines didn’t hoist a copy of the Declaration of Independence on Iwo Jima. Any judge that tried to use the Flag Amendment to restrict real free speech acts would be shot down not only by conservatives like me, but by libertarians like you.

Your invocation of bad uses by judges or prosecutors strikes me as the kind of emotional argument you accuse me of. Maybe that means we’re back on the chasm.

To Stephen Presser:

I do finally agree that we are yelling across the chasm and propose to have this missive be the penultimate posting. The last word will be yours (though I do reserve the right to refer witheringly to your Cassandra-like cries about the destruction of the republic at any time).

Regarding your point one. You write that “For me the debate is an important struggle in the current cultural war that is going on for the hearts and minds of this and future generations,” (another piece of inflated rhetoric if you ask me, but I’ll let it slide) and it’s puzzling to me that you feel the Constitution is the proper forum to draw this curious little line around one little act.

I agree that virtue and character are important in a society–though I think that sexual activity is but one measure of these qualities, and that it is quite possible to be suffused with virtue and endowed with admirable character without being or feeling particularly “patriotic.”

On the one hand you ask me to consider this amendment in its narrowest context—it’s just American flags we want to protect, not forms of speech, not other forms of flags or other symbols..really…it’s just this one thing—-and on the other you yourself attach to this proposed amendment a rather sweeping significance. It is a bulwark for the notion of responsibilities over rights, for civility, for limits etc.

And then you ask me to believe that neither you nor any of the other advocates would ever even think of using this same pattern of thought to control anything else. I can’t decide if you’re lying to me or to yourself.

Your point two, that my point is based on emotion just like yours, stretches the meaning of “emotion” out of shape. Laws against murder are, I suppose, based on “emotion” as well–the sentimental attachment have to our own lives and the lives of others.

I suppose to be clearer I should say the flag amendment advocates’ position is incoherent–and yes, I attach that term to the protectionist views of all the great men and women you want to name. I will explain yet again in the form of a mock Socratic dialogue between you and me:

Zorn: Why should it be against the law to desecrate a piece of cloth?

Presser: Because it’s not just a piece of cloth, it’s a symbol for our great country…..etc. etc…grieving widows, heartbroken veterans….etc etc. It insults such people and most others and causes them great distress and anguish.

Zorn: I went to a 4th of July picnic where there were little flags on toothpicks in the cake. If I throw those into a bonfire or just into the garbage, would you consider that desecration?

Presser: No. The flag we want to protect is any cloth flag of the United States, in a size fabric and form that is commonly displayed.

Zorn: So paper flags wouldn’t count?

Presser: No.

Zorn: So you don’t think it should be a crime (arson laws notwithstanding) to create, with high quality paper, a reproduction of the American flag and then burn it while chanting anti-American slogans?

Presser: No.

Zorn: …..or to do the same thing with a special “protest flag” that has been artfully constructed with, say 14 stripes or 52 stars, such that passers by think it’s a cloth flag of the United States, in a size fabric and form that is commonly displayed.?

Presser: No

Zorn: Even if such an act were calculated to offend and insult the very same people now offended by the burning of actual flags, and to the very same degree?

Presser: That’s right.

Zorn: So you really aren’t trying to prevent acts that outrage, per se?

Presser: Right.

Zorn: And you aren’t even trying to prevent acts that outrage flag-loving patriots as a general category?

Presser: Right.

Zorn: You are simply trying to protect a narrow class of yard goods from “desecration?”

Presser: Yes.

Zorn: And the reason you are doing so is because that act is dangerous?

Presser: No.

Zorn: …..common?

Presser: No.

Zorn: ….pornographic?

Presser: No, not in the conventional sense.

Zorn: …..a hateful statement directed at a narrow class of individuals with an attempt to threaten or intimidate?

Presser: No.

Zorn: The reason you wish to ban flag desecration is because that act sends a message, isn’t it?

Presser: Yes.

Zorn: And that message is repugnant to you, isn’t it?

Presser: Yes.

Zorn: Me, too. And it not simply the message, but the strength of that message that makes it all the more repugnant, right?

Presser: Right.

Zorn: And that message is fundamentally a socio-political message, isn’t it? It says “I have contempt for the United States of America,” doesn’t it?

Presser: Yes.

Zorn: But it’s not the expression you object to, it’s the act.

Presser: Right.

Zorn: Because you would fight to the death to defend the right of someone to *say* those words, wouldn’t you?”

Presser: Well….

Zorn: Metaphorically.

Presser: Yes.

Zorn: In fact, that’s one of the things the First Amendment is all about, isn’t it?

Presser: Yes

Zorn: It’s not there to protect just popular speech, is it?

Presser: No.

Zorn: In fact popular, comfortable speech rarely needs the protection of the First Amendment, at least in legal cases, isn’t that right?

Presser: Roughly.

Zorn: It’s freedom for speech that you can’t stand, isn’t that right?

Presser: yes.

Zorn: But it’s not a freedom to commit any old expressive act, is it?

Presser: No.

Zorn: In fact, generally speaking, one’s actions have to be within the law no matter what socio-political thought motivates them, right?

Presser: Right.

Zorn: So, for example, I am subject to the identical arrest, prosecution and fine if I spray paint “I love the USA” “I hate the USA” or “Go Northwestern!” on the Picasso downtown?

Presser: Right.

Zorn: And I am equally free to fly a Chinese, American, Swedish, Confederate or Tribune Co. flag from my porch on Flag Day?

Presser: Right.

Zorn: And if I own a Chinese flag and I burn it on my front lawn with all my neighbors watching, that’s OK?

Presser: As long as you file the proper environmental impact report and conform with local fire laws.

Zorn: Which I would do. Yet if I own an American flag and do the same thing, you would have that be illegal?

Presser: Yes.

Zorn: Unless it were somehow ersatz?

Presser: Yes, a fake-flag burning would be OK

Zorn: So you’re not punishing my thoughts?

Presser: Not at all. Wouldn’t dream of it.

Zorn: You’re punishing my action.

Presser: Yes.

Zorn: I’m burning a flag. We are in Presser’s America and you are the Top Cop and you are walking down the street and you see me burning a bona-fide American flag on my front yard. You have me arrested?

Presser: Yes.

Zorn: What if as you are having the cuffs put on me I explain that I was burning the flag in order to dispose of it properly, in accordance with the flag code?

Presser: Well then that would not be a crime. I would release you.

Zorn: Because what was in my mind was not contempt but respect?

Presser: Yes.

Zorn: So you are punishing me or not punishing me based strictly upon my thoughts?

Presser: Intent is a common concept in the law.

Zorn: Really? But isn’t it true that lack of intent is actually a defense in the law, a factor that mitigates or excuses the commission of an act that had results that were on their face undesirable?

Presser: Yes.

Zorn: I was speeding (undesirable), but I was trying to get this wounded child in the back of my car to the hospital (intent that mitigates the offense.) I shot him (undesirable) but he was charging at me with a knife screaming he was going to kill me (intent, etc.)?

Presser: Yes.

Zorn: Is a burned flag a desirable or undesirable thing?

Presser: It depends.

Zorn: So if you see a burned flag out of context you don’t know if that result is a good thing or a bad thing?

Presser: Right.

Zorn: Or just one of those things…like a flag that burned during a house fire.

Presser: Right.

Zorn: The result–the burned flag–is therefore a neutral result, right?

Presser: Right.

Zorn: It turns into an undesirable result once you glean the thoughts in the in mind of the person who burned it?

Presser: Right.

Zorn: Political thoughts?

Presser: You could put it that way.

Zorn: And can you name me another set of circumstances in jurisprudence where the political thoughts in the mind of the committer of an act is a determinate that changes a neutral result into a crime?

Presser: ___________________________________

Zorn: So it’s not the act, it’s the expression?

Presser: Right.

Zorn: Just as earlier you said it’s not the expression, it’s the act?

Presser: Right.

Zorn: And this needs to be forbidden because it upset a lot of people?

Presser: Right.

Zorn: Even though you would have no intention of ever abridging anyone’s right to commit an act calculated to give equal offense–such as burning something that looks like but isn’t a cloth flag of the United States, in a size fabric and form that is commonly displayed?

Presser: Right.

Zorn: And you find this position logical and coherent?

Presser: I do.

Zorn: Well I find it to be neither. I further find the idea itself an unworkable one that in the short term would be counterproductive—it would result in the burning of thousands of flags by people would never have dreamed of burning a flag until a grassroots movement worked up enough lawmakers to amend the First Amendment. I find it offensive to the ideals that make this country the best one on Earth. An America that feels it must ban the defiling of its flag in its Constitution will be a lesser place.

But, in accordance with custom, the last word to you….

To Eric Zorn:

That’s very kind of you to offer me the last word. I haven’t been involved in the flag debate for several months, and am swamped with many beginning of year tasks at this point.

I think we both got our points across in a reasonable manner, and while I thought that some of the things in your last dialogue were not exactly the way I would have put it, I thought our previous exchanges did a reasonable job of portraying our views.

I’m comfortable leaving things as they were, unfinished though they may have been.