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June 28, 2006

A remedy for flag-burning

So the Senate has now failed to pass the flag-burning amendment by a single vote. As contempuous as I am of the foolishness and false bravery of those who burn the flag, I can't say I'm sad to see the amendment go down.

Mind you, I don't have respect for the Times editorialists, who yesterday scolded the Senate for "trying to torch a hole in the First Amendment's free speech guarantee." Aren't these the same guys who have been pushing legislative efforts to shut down speech in the campaign context? Who support virually all restrictions on campaign speech, so long as the established press can say whatever it pleases? Don't lecture me on torching the First Amendment.

Back when I was in law school, yea, these many years ago, we learned that central to the goals of the First Amendment was the protection of what was called "core political speech." (From a summary of First Amendment law: "The First Amendment elevates core political speech above all other forms of individual expression by prohibiting laws that regulate it unless the laws are narrowly tailored to serve a compelling state interest.") But the Supreme Court has eroded that protection through its decisions upholding legislative restrictions on speech in the campaign context. (I haven't yet read Monday's decision invalidating important parts of Vermont's statute.)

The Supreme Court has reduced its protection of "core political speech" significantly, and, considering how well pornography fared in the Court in contrast, I took to joking that the First Amendment actually was intended to protect "core pornographic speech."

But back to my topic: flag-burning.

The problem can be addressed reasonably by effectively removing the burning and the anger it causes from the legal system. We lawyers don't have the answer to everything. Society doesn't need to regulate all human behavior.

So what I propose is this: Provide a defense to a charge of simple assault for someone who reacts to a flag burner by slugging him. No excessive violence is allowed. No weapons, no serious injury. That is, no aggravated assault. If you're charged with simple assault for roughing up a flag-burner, you have a defense.

DEFENSE FOR ASSAULT ON FLAG-BURNERS: It shall be a defense to a charge of simple assault that the person assaulted was burning or attempting to burn the American flag.

I realize that such a statute would be subject to First Amendment criticism in the same way as a direct ban on flag-burning. But I think the result of the statute would be that a charge of simple assault would simply not be brought in the first place, which would avoid the issue entirely.