Burnt Out

Tuesday, May 13, 2003; Page A18

IT'S BACK -- yet again. America has budget deficits, homeland security, tax cuts and overseas wars to worry about. Yet Congress is beginning its regular ritual of contemplating an amendment to the Constitution criminalizing the "physical desecration" of the American flag. This might seem like an odd moment for it: After two wars in as many years, patriotism is running high, and flags fly all over the country. And all over the country Americans are busily not setting fire to those honored banners. Flag burning, in fact, is exceedingly rare. Yet the amendment's depressingly large number of supporters have never let themselves be restrained by the fact that the amendment represents a non-solution to a non-problem, one whose most predictable outcome would be to make flag burning the "in" protest among the young and antisocial. The whole ritual would merely showcase Congress's penchant for distracting itself with symbolism, except that the amendment comes dangerously close to passing each time it comes up. One year, it might actually get sent to the states for ratification.

The flag is a precious symbol and warrants respect. Burning it is a particularly unpleasant means of expressing unpleasant ideas -- hatred of country most especially. But it isn't more odious than many other expressive symbols for which Congress does not craft exceptions to the Bill of Rights. Swastikas are pretty nasty too, and a lot of people died under the hammer and sickle, yet displaying these is protected -- regulated only by moral opprobrium.

Creating an exception for desecrating the flag would not, in practical terms, much change the broad protections of the First Amendment. But it would wreak a tremendous spiritual change, effectively turning the words "no law" in "Congress shall make no law" into "few laws." Which is to say it would sap the First Amendment of the principle it represents -- the one that insists that this country does not punish ideas, no matter how unpopular. Many countries, even democracies, still punish those who offend the royal family or deny the Holocaust or preach racial hatred. The power of the First Amendment lies in its purity -- the boundaries of its protection are not determined by the substance or odiousness of the ideas expressed. That purity should not be adulterated now so that Congress can protect flags that nobody's burning anyway.