I can only hope so.
First thing I want to know is: has there ever been any historical evidence that our Founding Fathers wanted the concept of
any actions/conduct that a person engages in that has a political purpose underlying it is protected by the Freedom of Speech? Did Joseph Story ever say anything about that in
The Commentaries on the United States Constitution?
The first thing I should say about my personal feelings about flag-burning is that I really don't give a damn about it. As long as you don't burn a flag under my butt it's no skin off my nose. The sight of a burning flag evokes absolutely no emotion from me whatsoever.
But I cannot understand why a law that prohibits flag-burning is deemed unconstitutional. Trying to treat the act of flag-burning as if it's encompassed within the concept of Freedom of Speech strikes me as if you want to treat the First Amendment as if it's an across-the-board form of libertarianism: anything you would be willing to give people the freedom to do is protected by the First Amendment (and/or the Ninth Amendment, the penumbras that emanate from the Bill of Rights, etc.)
Another thing that surprised me about the issue of flag-burning is to compare
Texas v. Johnson to
R.A.V. v. St. Paul, handed down by The Supremes in 1992. The former case was only 5-4, but the latter case was unanimous (in terms of conclusion). The four Justices who dissented from the flag-burning decision in 1989 (Rehnquist, O'Connor, White, and Stevens) were joining in accepting the concept that burning a cross (make-shift crucifix) is a constitutionally-protected right, protected by the Freedom of Speech. No to flag-burning, but yes to cross-burning, per those four. That's obviously an emotional reaction to the sight/concept of a burning flag but no emotional reaction to the sight/concept of a burning cross. Yeesh!
Why is burning
anything the equivalent of the Freedom of Speech? In 1968, by 7 to 1, the Court deemed that the act of burning a draft card is not protected by the First Amendment. But just one year later, by 5 to 4, the Court came about one foot away from decreeing that burning a flag is protected by the First Amendment ....
Street v. New York.
Do actions such as burning a draft card, burning a flag, burning a cross, burning an effigy have symbolic meaning to them? Is there a political point to why people do them? Yes. But by the same token, if the next time I travel to Washington D.C. and I happen to enter the Senate Russell Office building, if I happen to cross paths with Sen. Mitch McConnell, I might want to stop and talk with him briefly, and I might want to unzip the fly on my trousers and pee on his shoes as I'm talking to him, that would be symbolic too and it would have a political point that I would be trying to make. But does that mean I have a First Amendment right to pee on the Senator's shoes? Do I have a constitutional right to burn his necktie?
The worst thing of all is when I hear people say that they disagree with
Buckley v. Valeo and
Citizens United v. FEC, because (so they say) "Money is not the same thing as speech." If people like that ever come at me with the question, "Where in the Constitution does it say that money is the same thing as speech?" I reply to them, "It says so in the exact same spot that it says that burning a flag and burning a cross is the same thing as giving a speech." To me, it's the worst display of legal unintelligence when someone says, "Money is not the same thing as speech."
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