Flag protection hurts free speech

In 1846, beset by blizzards, hunger and frayed nerves, the Donner Party (about half of them, anyway) survived an arduous winter in the High Sierras, some of them by eating others.

That, metaphorically, is what the House of Representatives is now proposing to do in the name of defending American beliefs. On Wednesday, by a vote of 286 to 130, the House approved a resolution that would enable Congress to take its knife and fork to the First Amendment as though it were a threat to democratic survival. The so-called Flag Protection Amendment would empower Congress to outlaw desecration of the American flag, despite free-speech guarantees that have protected open public protest since the nation’s founding.

The amendment has made it through the House five times before, but five times the Senate has declined to go along. Backers think that this year, with a more conservative Senate, they may finally send the proposal to the states for ratification. The United States may yet catch up with such forward-thinking regimes as China, North Korea, Iraq, Iran and Cuba that already prohibit the desecration of their flags.

A century and a half ago, the Donner Party got in trouble by taking what was said to be a shortcut. Rather than trust the course that had served thousands of earlier California-bound settlers, they yielded to the temptation of taking a supposedly easier route. It was a tragic mistake.

Now, many in Congress are pursuing an ill-advised shortcut to political tranquility, ignoring the lesson of the 19th century pioneers and shunning the warning of the U.S. Supreme Court.

“We are tempted to say,” wrote Justice William Brennan in Texas v. Johnson, the 1989 decision that upheld flag-burning as protected political speech, “that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.”

Those words made sense to a liberal like Brennan, who wrote them, but also to a conservative like Justice Antonin Scalia, who concurred. If somebody burns an American flag, the justices agreed, the best response is to wave one, to salute one. But election-minded members of Congress saw it differently. If the Constitution protected such odious dissent, the Constitution was flawed and they would just have to amend it.

By the time the Donner Party realized the disaster into which their shortcut had delivered them, they had few options. In their desperation, they abandoned principle. As long as some of their party had already died, they would just have to eat them.

Of course, the Donner Party was contending with starvation and lethal exposure to unforgiving elements – things that will kill you.

Free expression of loathsome ideas may make you mad – really, really mad – but it won’t kill you.