What Steve Daines doesn't understand about flags and free speech 

Last week, as senate Republicans crafted a secret bill to remake the nation's health care system, a special prosecutor moved closer to investigating the president and nine separate mass shootings erupted across the country, Sen. Steve Daines took on our most pressing problem: flag burning. In a press release on Flag Day, Daines proposed a constitutional amendment that would give Congress the power to outlaw desecration of the American flag.

The reason his idea takes the form of a constitutional amendment and not a law is that the Supreme Court has ruled that burning the flag is constitutionally protected expression. As you may remember from your coworker who complains about feminism on Facebook, the First Amendment broadly protects speech of any kind, including nonverbal expressions like donating to super PACs and lighting up Old Glory.

While these expressions may not be good in themselves, we generally agree that the act of protecting them is. You might say it's one of the qualities that makes America exceptional. To quote the dissenting opinion of Justice Oliver Wendell Holmes in United States v. Schwimmer, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."

Fortunately, Sen. Daines does not want to restrict that. Although it might seem, at first blush, that he is proposing the first constitutional amendment in U.S. history to restrict expression, he actually just wants to restrict a behavior. American jurisprudence offers plenty of precedent for that, as his staff explained to Jesse Chaney of the Helena Independent Record. Quote:

"Daines' staff said the senator does not consider flag desecration to be a form of peaceful expression. They said his amendment would not limit anyone's right to expression, but [would] distinguish flag desecration as conduct not protected by the Constitution. The senator's staff noted that Congress already bans many other forms of conduct through criminal law."

I'm no lawyer, but that last part checks out. Criminal law does ban many behaviors. If the government can make it illegal to steal a car, why can't it make it illegal to burn the flag? They're both just conduct, after all.

click to enlarge PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters

Of course, speech is also a type of conduct. Pretty much any form of expression is. Publishing a newspaper, painting a picture, criticizing the government—they're all conduct. What distinguishes expression as a category of behavior is symbolic content. When I speak, it's not the act of making noise with my mouth that matters. It's the words I say, the symbolic meaning of those noises.

If we define expression as conduct with symbolic meaning, the senator's argument runs into problems. I quote the very first thing he says in his press release: "The American flag has been a symbol of hope and freedom for centuries and ought to be respected. Our nation's flag must be set apart as a protected symbol worthy of honor."

He uses "symbol" twice there. Despite his claim that he does not consider flag burning a form of expression, Daines makes it pretty clear that he thinks of it as symbolic. Presumably, he didn't propose this amendment to protect individual flags. He's concerned about the idea that burning the flag expresses.

That may be an idea we hate. Burning the flag seems like a vague and unhelpful way to express yourself, like trying to improve your internet service by tearing up your Charter bill. But I submit that as Americans, an idea we hate even more than flag burning is making laws about what we can and cannot say—especially when what we want to say has to do with how our country operates.

In this sense, the desecration of the American flag is ongoing. The flag is on bumper stickers telling us to love guns and go to church. Since Sept. 11, 2001, it's on the lapel of every Washington cynic who wants the United States to be synonymous with his or her political agenda, from war in the Middle East to deregulating the health insurance industry. The flag has been relentlessly deployed by those who would make it a symbol of their own purposes, and their grubby fingers leave marks.

Sen. Daines will probably not find a tighter grip than anybody else has. His proposal stands little chance of changing the Constitution. That would require a two-thirds majority in both the House and the Senate, plus ratification from 38 states. The former hurdle seems insurmountable in the Congress we have, and the latter hasn't been overcome in 25 years. It's appropriate that Daines proposed his idea on Flag Day, since it seems purely symbolic.

But we should take a moment to think about what it means. At best, it reflects his career-long habit of prioritizing safe gestures over substantive debate. At worst, it suggests that his idea of what makes America exceptional differs from the historical consensus. Neither explanation reflects how we want a senator to think.

Dan Brooks writes about politics, culture and the patriotism of cynics at combatblog.net.

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