Читать книгу Keeping the Republic - Christine Barbour - Страница 142

The question of what to do when speech is linked to action remained. Many forms of expression go beyond mere speech or writing. No one disputes that government has the right to regulate actions and behavior if it believes it has sufficient cause, but what happens when that behavior is also expression? Is burning a draft card, wearing an armband to protest a war, or torching the American flag an action or an expression? The Supreme Court, generally speaking, has been more willing to allow regulation of symbolic speech than of speech alone, especially if such regulation is not a direct attempt to curtail the speech.

One of the most divisive issues of symbolic speech that has confronted the Supreme Court, and indeed the American public, concerns that ultimate symbol of our country, the American flag. There is probably no more effective way of showing one’s dissatisfaction with the United States or its policies than by burning the Stars and Stripes. Emotions ride high on this issue. In 1969 the Court split five to four when it overturned the conviction of a person who had broken a New York law making it illegal to deface or show disrespect for the flag (he had burned it).³⁴ Twenty years later, with a more conservative Court in place, the issue was raised again. Again the Court divided five to four, voting to protect the burning of the flag as symbolic expression.³⁵ Because the patriotic feelings of so many Americans were fired up by this ruling, Congress passed the federal Flag Protection Act in 1989, making it a crime to desecrate the flag. In United States v. Eichmann, the Court declared the federal law unconstitutional for the same reasons it had overturned the state laws earlier: all were aimed specifically at “suppressing expression.”³⁶ The only way to get around a Supreme Court ruling of unconstitutionality is to amend the Constitution. Efforts to pass an amendment have failed in the House and Senate, meaning that despite the strong feeling of the majority to the contrary, flag burning is still considered protected speech in the United States.

The Court has recently proved willing to restrict symbolic speech, however, if it finds that the speech goes beyond expression of a view. In a 2003 ruling the Court held that cross burning, a favored practice of the Ku Klux Klan and other segregationists that it had previously held to be protected speech, was not protected under the First Amendment if it was intended as a threat of violence.³⁷ The Court noted that cross burning would still be protected as symbolic speech in certain cases, such as at a political rally.