PROTEST AND PYROMANIA WHEN SPEAKER Lewis was asked if he thought the bill was constitutional, he replied, “There’s no question about it.” But, of course, Lewis is not the doctor you would want to consult in a case of constitutional infirmity. I put the question to Senator Washington. I asked him if he thought the new law would be ruled unconstitutional if it were applied to political protestors. “Probably,” he said. He voted for it, he explained, because he hoped passage of the law would head off attempts to tinker with the Constitution. On the final night of the special session I sat down with Senator Parmer in his office. I asked him to explain how in the name of Betsy Ross his new law could be construed to be constitutional. Here is his defense. The rewritten law makes the destroying of the flag, per se, a crime, without addressing the question of what the person may or may not have been trying to communicate. “Whether you do it in your bedroom, whether you do it publicly, privately, whether you intend to offend anybody or not,” Parmer said, “if ‘ you deface the flag, you’ve committed a misdemeanor.” He admitted that he could not guarantee that the statute is constitutional only that it would have a better chance of being upheld than the old law. But how would it work in practice? Suppose a protestor is arrested for flagburning and claims freedom of speech . . . “And we say: you can’t do that any more than you can go out here and knock the arm off the statue of Confederate war heroes and deface. that statue,” Parmer said. But that’s vandalism, I said. “Yeh, it’s vandalism, and a violation of a statute, and you can’t escape the violation of that statute by claiming it was expressive speech protected under the First Amendment. We’re trying to create an exact parallel, where the physical act itself is illegal,” Parmer said. What does it really hurt if someone burns a flag? I asked. “I think it’s very offensive, personally offensive to me,” Parmer said, “and I think it’s personally offensive to about 85 percent of the people. And the biggest damage it’s going to do is, unless we can fix it, it’s going to result in somebody putting in an amendment to the United States Bill of Rights, which I think is a dangerous precedent.” And yet Parmer voted for the resolution calling for such an amendment, I noted. “Yeh, and I would support an amendment, but I support it unlike President Bush I support it only as a last resort, because I recognize that the Bill of Rights is something that should be amended only with grave reservations. And I have grave reservations about it.” Parmer said it was important to note that the Supreme Court did not overturn the Texas statute it simply found that in the case of Gregory Johnson it was unconstitutionally applied. The court left open the possibility that in other cases the law might be enforced constitutionally. What would be an example of such a case? Suppose, Parmer said, a man was dragging a flag behind his car and was stopped and questioned. And suppose his explanation was that he was dragging the flag “just because I felt like it.” In this case he was clearly not exercising his free speech; he was just disregarding the law. Perhaps there are other such examples. Burning a perfectly good flag in the privacy of one’s own basement could legitimately be outlawed. But the issue here would be something along the lines of pyromania. And in Parmer’s example, the issue would be flag-abuse-by-dragging-from-an-auto Burning a flag at a political demonstration is clearly something different. It is speech. “Symbolic” or “expressive,” ,perhaps. But it is a means of Political communication. How can we allow the government to begin to make classifications for what forms of political communication will be allowed or not allowed? Parmer’s answer is that exceptions to freedom of speech and expression are already well-established in our law. Language that threatens to result in a breach of the peace may be prohibiteo Expression that is offensive to community standards may be prohibited. A law that prevents flagburning is in the same category as one that restricts hard-core pornography, Parmer said. READING BRENNAN SEVERAL TIMES in the course of our discussion Parmer referred to the Supreme Court decision on flag: burning, using it to buttress his contention that his law would pass constitutional muster .though he admitted, as well, that there was “plenty of language in there” to support the opposite view. And for this admission, Parmer deserves a purple medal in the brave use of understatement. “Plenty of language” doesn’t quite get it; “a preponderance” of language would come a little closer. In fact, almost all the language in the court decision supports the opposite view. Consider a few brief excerpts from the decision, which was written by Justice William Brennan. “Nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. To bring its argument outside our precedents, Texas attempts to convince us that even if its interest in preserving the flag’s symbolic role does not ‘ allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State’s argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is related to expression, as it is here.” The Brennan decision continued: “To conclude that the Government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the GoNiernment, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in, the very way that the First Amendment forbids us to do.” Reading the Brennan decision without a willful effort to misconstrue it, one would be forced to conclude that the bill the legislature passed in July would be effective as a law for the prosecution of careless flagdraggers and pyromaniacs but not of impassioned political protestors. How many members of the legislature knew this and yet voted for the law anyway? Fifty percent of them? Forty percent? Twenty? Only two members out of 181 voted against it. How many legislators knew in their hearts that a constitutional amendment would set a dangerous precedent? How many felt that it was not really necessary that the country does not really face a flag-burning crisis? Again, just two members voted against the resolution urging Congress to propose a constitutional amendment. \(Senators Washington and Barrientos were against the resolution. Reps. Danburg and And how many of the people’s representatives actually read the Brennan decision that caused such a stir? The decision rests on statements such as these: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply becaue society finds the idea itself offensive and disagreeable.” Brennan quoted Justice Robert Jackson making a similar observation in a 1943 case: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Are there no more than four legislators in Texas with courage enough to defend such a position? Are there no more than four who will say “I am not afraid of Lee Atwater and his Republican flag-waving Party”? Are there no more than four who refuse to put George Bush on a par with Thomas Jefferson and James Madison and give him a. hand in rewriting the Constitution? In July of 1989 there were only four. THE TEXAS OBSERVER 9 k 4, MO,
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