America, the red, white and blue, we spit on you. - Gregory Johnson
Two weeks ago, an editorial condeming the proposed Constitutional amendment to probit the desecration of American flags appeared in The Daily Herald, a local Utah newspaper. Last week, The Daily Herald published a rebuttal from the chairman of the Citizens Flag Alliance, retired Army Major General Patrick H Brady. In his rebuttal, Mr. Brady skillfully bulldozes the flawed reasoning contained in the editorial.
The Herald’s argument is built on the premise that the First Amendment free speech clause encompasses other forms of expression including, but not limited to burning American flags. They write that, "Hatch and the flag alliance (sic) say an amendment is necessary to rein in a renegade Supreme Court that has improperly spread a cloak of protection over flag protests. In various rulings, the court has held that flag desecration constitutes political expression protected by the First Amendment."
But of course, the First Amendment does not protect "expression." That notion was an invention of the Court in the 1989 Texas vs. Johnson case. The "various rulings" the editorial refers to are all post 1989 citing the Johnson decision as precedent.
Brady correctly answers with the following:
"Sadly, the Herald confuses speech and expression. One need only think of the many types of expression to know why the founders wisely eschewed ‘expression’ and chose ’speech.’
"Walter Berns, in ‘Making Patriots,’ highlights this point: ‘The First Amendment protects freedom of speech, not expression, and, whereas all speech may be expression of a sort, not all expression is speech, and there is good reason why the framers of the First Amendment protected the one and not the other.’ If the Founders intended ‘expression,’ freedom of the press and assembly become redundant.
And he adds:
"On the day after the Supreme Court decision the Senate (including future opponents of the amendment), without dissent declared in SR-151: ‘… the act of desecrating the flag is clearly not ’speech’ as protected by the First Amendment.’ …"
The people who are gearing up to oppose this amendment when it hits the Senate know that the issue is not really about desecrating American flags but rather, about whether or not "expression" should continue to be protected under the free speech clause of the First Amendment.