December 15, 2005


Star-Spangled Pandering (Richard Cohen, December 15, 2005, Washington Post)

Last month Justice Antonin Scalia was politely quizzed by Norman Pearlstine, the outgoing Time Inc. editor in chief. The event, held in Time Warner's New York headquarters, was supposedly off the record, but so much of it has already been reported that it will not hurt to add Scalia's views on flag burning. He explained why it was constitutionally protected speech. It's a pity Hillary Clinton was not there to hear him.

The argument that this famously conservative member of the Supreme Court advanced -- actually, reiterated -- was that while he may or may not approve of flag burning, it was clear to him that it was a form of speech, a way of making a political statement, and that the First Amendment protected it.

But, even if the right answer, that's only the threshhold question. Next you have to ask what that speech is intended to convey and then demonstrate that it is consistent with the ends of the Constitution: "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Since we can say, at a minimum, that flag-burning expresses opposition to our constitutional order and that the laws against it accord with norms of republican liberty, there's no basis for protecting said "speech."

Posted by Orrin Judd at December 15, 2005 4:13 PM

What does the 1st Amendment protect? Is it "speech" or "a way of making a political statement"? Remember that guy last year who tried to run a Bush supporter off the road, and claimed he was just exercising his free speech? Why wasn't he right, if the latter?

And how exactly does the SC square flag-burning as "free speech" with its decision on CFR, anyway?

Posted by: b at December 15, 2005 4:37 PM

So, let me get this straight: an unelected, appointed-for-life Supreme Court justice, who has never been terribly apologetic about his creed in the past, is somehow more likely to be guilty of pandering than the junior Senator with presidential ambitions?

And flag-burning, however distasteful it may be, always signifies "opposition to our constitutional order?" Although I am naturally not able to speak for the average flag-burner, I can at least imagine instances where it does not.

Posted by: M. Bulger at December 15, 2005 5:01 PM


For the same reason the flag burners would be prosecutable if they tried to burn an American instead of a flag.

Posted by: M. Bulger at December 15, 2005 5:04 PM

Trying to run someone off the road is a crime in and of itself. It's threatening someone's life. It does not matter what the reason is. But the act of burning fabric is not a crime in and of itself. If someone burned a sweater or the French flag no one would would say that it is a crime.

Burning the flag is a very offensive act. It gets me angry, but it is simply political expression, expression that I disagree with, but speech none the less. Speech is not simply spoken words.

OJ does bring up a relvant, but not all encompassing point. If flag burning is part of sedition, then the burner should be held accountable to whatever the penalties for sedition is. But flag burning may not be sedition. It certainly does not imply the person is attempting to overthrow the government as OJ implies.

If the country is in a state of mass rebellion, then desperate measures would be needed and I'd be inclined to stamp it out. But that is not the case now.

Posted by: Chris Durnell at December 15, 2005 5:14 PM

I came pretty damn close in 2000.............

Posted by: Sandy P at December 15, 2005 5:17 PM

"Speech is not simply spoken words."

Sure it is. Why does the 1st Amendment specifically guarantee the freedom of the press, if not that "free speech" does not necessarily imply the right to write down & distribute your thoughts?


speech ( P ) Pronunciation Key (spch)

The faculty or act of speaking.
The faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words.
Something spoken; an utterance.
Vocal communication; conversation.

A talk or public address: “The best impromptu speeches are the ones written well in advance” (Ruth Gordon).
A printed copy of such an address.
One's habitual manner or style of speaking.
The language or dialect of a nation or region: American speech.
The sounding of a musical instrument.
The study of oral communication, speech sounds, and vocal physiology.
Archaic. Rumor.

If American jurisprudence wants to make up its own definitions, fine. As long as the "fighting words" doctrine is maintained, I have no problem with allowing flag burning to be legal.

Posted by: b at December 15, 2005 5:38 PM

Is yelling fire in a crowded theater, without a fire, considered protected free speech if the perpetrator didn't like the show?

Posted by: Genecis at December 15, 2005 5:38 PM

And if we have to get that specific, then we have to have permission to use each medium individually? I'm sorry, b, I can't think that is reasonable as we continue to invent new ways to talk to one another. It didn't mention a lot of things directly: but speech in the sense of communication or utterance is well established in common usage. If I take off my wedding ring in front of my spouse and throw it in the garbage can next to the sink, she is correct to assume that I have "said" something, whether there were accompanying words or not.

Posted by: Arnold Williams at December 15, 2005 5:57 PM

Arnold: I don't claim to be a lawyer, just a regular citizen, which means I don't comprehend much of what passes for recent constitutional jurisprudence. Why does the 1st Amendment guarantee the free press, since it should be implicit as free speech, and the Founders didn't waste words? Anyone?

Posted by: b at December 15, 2005 6:05 PM

We do need to set down a marker noting that OJ's purported understanding of the First Amendment -- it allows only that speech furthering the ends noted in the Preamble -- is nuts. If someone speaks to promote even the most unAmerican of ideas, like monarchy for example, the First Amendment prevents Congress from prohibiting that speech. Of course, I think that the federal constitution leaves the states free to prohibit that speech, but they don't. The result, not entirely predictably, has been to so devalue political speech that we pay it no attention, which has been all to the good.

Posted by: David Cohen at December 15, 2005 6:15 PM

The footnotes are to be read in the context of the main text, not vice versa.

Posted by: oj at December 15, 2005 6:24 PM


It protects political speech consistent with the stated ends of the Constitution.

Posted by: oj at December 15, 2005 6:25 PM


The constitutional thicket to which you refer was planted when the Supreme Court invented the concept of "conduct as speech". It's hard to put definitional limits on such a concept.

Posted by: Fred Jacobsen (San Fran) at December 15, 2005 6:42 PM

b: I'll take a wild guess and say that speech was already distinguished from the press in the common law at the time of the drafting.

Posted by: joe shropshire at December 15, 2005 6:51 PM

Fred: The thicket was planted in 1921, when the Supreme Court held that the First Amendment restricted the states' ability to regulate speech. State regulation with Congress unable to act makes sense. No regulation at all is untenable so the upshot is to allow Congress to regulate speech.

OJ: The blessings of liberty include free speech.

Posted by: David Cohen at December 15, 2005 6:55 PM

The whole Bill of Rights is wasted words. It's the constitutional version of that bridge in Alaska, just added to win votes.

Posted by: oj at December 15, 2005 6:56 PM

joe: Yes, that's what I said above. Arnold disagreed, so I wanted to see if anyone had a different idea. So we're back to speech being spoken words, and the SC being silly...

Posted by: b at December 15, 2005 6:59 PM


Liberty, not liberty. Restrictions that apply to everyone satisfy the requirement.

Posted by: oj at December 15, 2005 6:59 PM

The Bill of Rights are not superfluous, as they were adopted pursuant to the amendment clause of Constitution and are therefore part of the bargain. A deal's a deal.

Speech does indeed mean the spoken word. And freedom of the press means the written word, not freedom of the press corps.

Scalia is wrong and Hillary is right. Yet he's not pandering...but she is. 'Tis a paradox.

Posted by: Noel at December 15, 2005 7:54 PM


They are superfluous and were understood not to contradict anything in the text nor add to it.

Posted by: oj at December 15, 2005 8:46 PM


My law practice doesn't focus on First Amendment jurisprudence (I specialize in eminent domain), so your point about 14th Amendment incorporation (?) of the Bill of Rights to make them applicable to the States in 1921 is edifying. I am a bit confused with your conclusion. Do you mean that allowing Congress to regulate speech is the logical consequence of 'no regulation at all', or that plenary Congressional regulation is an outcome you desire? I had thought that Supreme Court decisions left speech regulation pretty much a free-for-all, prohibiting State and the Congressional regulation. But I defer to your superior knowledge.

BTW, a professor of mine at UCLA Law School (Melvin Nimmer) was instrumental in pioneering the concept of 'conduct as speech', so I heard at lot about it in the First Amendment constitutional law course he taught. He was a great teacher, a brilliant legal mind, but can't say I agree with him thirty years later on that point.

Posted by: Fred Jacobsen (San Fran) at December 15, 2005 8:49 PM

Fred: My argument is that allowing state speech regulation while forbidding federal speech regulation is a workable scheme. Not allowing any speech regulation is not workable; speech will be regulated. The effect of applying "Congress shall make no law ... abridging the freedom of speech" equally to the states has been to weaken "no law" and allow both federal and state regulation of core political speech.

As for conduct as speech, I don't have a huge problem with it in theory. To the extent that conduct is sending a message, then I think that the better policy (leaving the Constitution to one side) is to have content neutral regulation that focuses on the conduct, not the content. A law that forbids getting a crowd together in the street and burning things strikes me as perfectly reasonable regardless of what the "thing" is.

Posted by: David Cohen at December 16, 2005 12:19 AM

Mr. Judd;

You write

[the first 10 Amendments] are superfluous and were understood not to contradict anything in the text nor add to it.
True if one accepts the doctrine of enumerated powers, as those who wrote the Constitution did. Given that, could you show where in the enumerated powers of the Constitution Congress is empowered to non-political speech?

Posted by: Annoying Old Guy at December 16, 2005 1:15 AM


Bills of Rights must be important as Congress has spent the last month writing John McCain's "al Qaeda Bill of Rights". I think we need to ask ourselves "What other post-hypnotic suggestions did his North Vietnamese captors implant in his subconcious mind?"

Certainly the Bill of Rights doesn't contradict the text. And it doesn't add to it in the sense that the people already understood their Rights and Duties and the role of limited government. But it is more than sweet nothings whispered in the electoral ear; it was an effort to prevent what the anti-federalist Brutus so presciently described:

"Exercised without limitation, it will introduce itself into every corner of the city and country. It [the national government] will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take the cognizance of the professional man in his office or his study; it will watch the merchant in the counting-house or in his store; it will follow the mechanic to his shop and in his work, and will haunt him in his family and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house and in the field, observe the toil of his hands and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States." I noted the FEC, the NEA, the Dept. of Ag., OSHA, farm subsidies, abortion "rights", HUD, the EPA, and affirmative action to name but a few in that dissent.

btw, the First Amendment itself excludes flag-burning from protection: citizens have a duty to assemble "peaceably" when they wish to petition for redress; "peaceably", not "incindiarily".

Posted by: Noel at December 16, 2005 8:21 AM

Or, rather, "incendiously".

Posted by: Noel at December 16, 2005 8:35 AM


In Anglo-American legal tradition whicg regulated speech.

Posted by: oj at December 16, 2005 8:38 AM

Mr. Judd;

Many aspects of the Constitution contradict what was then Anglo-American legal tradition (e.g., no Bills of Attainder), which means a reasonable response to your rejoinder is "so what?". If you want to openly reject the doctrine of enumerate powers by appealing to common law, come right out and say so. But of course, that destroys your claim that the Bill of Rights was superfluous.

Posted by: Annoying Old Guy at December 16, 2005 1:40 PM


The speech they considered free obviously didn't include the speech they routinely regulated. Where there was something particular they meanty to protect or do away with they did explicitly describe it.

Posted by: oj at December 16, 2005 1:55 PM

Let's get down to brass tacks here. Does the first amendment protect burning a Koran?

Posted by: erp at December 16, 2005 2:52 PM


Newsweek will get you for that one.

I note that it was a 'crime' to burn a draft card, and it is a crime to deface (i.e., comment on or worse) your tax return.

I think burning bras is still permitted, though.

Posted by: ratbert at December 17, 2005 12:46 AM