If Congress should have the power to ban the physical desecration of the American flag, why shouldn’t it also have the power to ban physical desecration of other symbols that people hold dear? That’s not a rhetorical question: if the Constitution is amended to give Congress power to ban flag burning and desecration, people who are offended at the desecration of other symbols may start demanding accommodation. How should they be answered?
Supporters of such bans will need strong arguments because these debates will arise. There is already a good label for this: censorship envy. We find censorship envy whenever the government censors something which is offensive to one group and then other groups demand that things which offend them be censored as well.
One example of censorship envy might come from Muslims who were deeply offended at the Danish cartoons of Muhammad. If Congress can protect the flag from desecration, why can’t it protect the image of Muhammad from desecration? Aren’t some of the people who were loudest in proclaiming that newspapers have an obligation to reprint the cartoons also among the loudest when it comes to supporting bans on flag desecration?
What about Andres Serrano’s “Piss Christ,” a plastic crucifix suspended in a glass of his own frozen urine? It was condemned by Christians around the nation who saw it as desecration of an imortant symbol. If Congress should have the power to ban physical desecration of the American flag, why not also ban physical desecration of a crucifix? Since those who support bans on flag desecration are also among those who insist that America is a Christian Nation, this analogy will be especially hard to resist. If America is a Christian Nation, then the crucifix is every bit as much a symbol of America as the flag is, so doesn’t it deserve as much protection?
Perhaps these analogies aren’t convincing because they involve religious rather than political symbols, so let’s consider something closer: the Confederate flag. The Confederacy has been dead for over 100 years, but the idea of the Confederacy is very much alive in the hearts and minds of many. For some this is a positive idea because it represents Southern culture and independence; for others it is negative because it represents slavery, racism, and armed rebellion against America. It is legal to fly and wave Confederate flags, but such acts can be deeply offensive to some.
So, if Congress should have the power to ban desecration of the American flag, why shouldn’t it have the power to ban waving the Confederate flag? Both are offensive to some. Both are arguably acts rather than speech. Both are arguably protests against the American government and liberty — supporters of bans on flag burning like to cite how many Americans died defending the flag, but how many died defending that flag against the Confederacy?
Maybe Congress should instead have the power to ban desecration of the Confederate flag — something several southern states already do. Desecration of the Confederate flag is just as offensive to some as desecration of the American flag. How many politicians willing to “defend” the American flag will accord the same protections to the Confederate flag?
If Congress were to ban waving or desecrating the Confederate flag, it would be taking sides in public debates about the meaning of that flag — it would be siding either with those who see it as a symbol of racism and oppression or with those who see it more positively. Similarly, a ban on burning the American flag would also be taking sides in debates about its meaning. While the government may have preferred interpretations of symbols, it has no authority to deny people the ability to express alternative interpretations.
Denying government this power is based on the idea that the First Amendment guarantee of free speech is a truce when it comes to censoring offensive ideas. It’s an agreement not to wield the blunt club of censorship against ideas you find offensive so others won’t use the same club against your own ideas. Instead of debating an amendment to the Constitution to ban desecration of any flags, Congress should issue a simple statement to activists pushing it:
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Yes, we know that you find this deeply offensive. But you will have to endure it. Others in America must also endure speech which they find just as offensive. Someday, people might even find speech of yours to be deeply offensive. We won’t try to censor that any more than we will act on your calls to censor others’ speech now. Living in a free society means accepting the risk of being offended; it also carries the responsibility to not censor those you abhor, but rather to counter their speech with speech of your own.
The wording here is deliberately broad; every time someone calls for censorship, the same statement can just be reissued.
