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Should Burning the American Flag Be Illegal?

A little over three years ago, the Senate narrowly defeated a proposal that would amend the Constitution to make burning the American flag illegal. According to TheWall Street Journal, however, banning the desecration of the flag is back up for debate:

The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.

The center of the debate: Does the First Amendment protect against non-verbal speech? As Eugene Volokh compellingly explains, the Founding Fathers intended the First Amendment to include all forms of expression:

Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's "right to speak, to write, or to publish their sentiments." Courts and commentators (including early Supreme Court Justice James Wilson) routinely used "publish" to refer to publicly displaying pictures and symbols, as well as printing books. When Congress recast Madison's phrasing to the shorter "freedom of speech, or of the press" it was not seen as a substantive change.

Yet the bigger question is whether this issue should once again be up for discussion in the U.S. Congress. Flag burning: Unpatriotic? Maybe. Harmful to other people? Not really. So why the need for a ban?

Reason coverage on flag-burning here and here.


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