A bill was just defeated in Congress to outlaw flag burning again. Since the Supreme Court held a few years ago that burning a flag is speech completely protected by the First Amendment, Congress has recognized that the only way to over-rule the Court is by amending the Constitution. The bill attempted to start the ball rolling--the necessary number of states would still have to endorse the amendment. At any given time, a lot of half-baked proposals to change the Constitution are floating around, and most never go anywhere, but the flag burning amendment had the nightmarish simplicity necessary for success: a vote against it, rather than being perceived as a vote in favor of free speech, would be seen as a vote in favor of flag desecration. And so certain things come to pass, not because they are right, but because no-one has the moral force to stand up to them. However, the Founders in their wisdom provided that Constitutional amendments require a 2/3 majority of both houses. The bill fell several votes short of passing the Senate--only 63 Senators voted for it--and is dead for now.
In effect, what we would be doing is amending the First Amendment to except a form of speech we do not like, and once we start doing that, there is no end to it. Each of us hates some form of speech--pro-life, pro-choice, pro religion in the schools, pro secularism in the schools, and so on-- and many of us secretly wouldn't mind if the government banned it. The First Amendment has actually never been fully understood, nor free speech favored, by the average person. Adopting it represented the kind of far-sighted leadership that we rarely see in our politicians today.
The First Amendment serves as a stop sign. It says, "You can't!" whenever we talk about banning a form of speech. It was not created to protect only the speech we favor. It guards all speech, on the theory that none of us is Godlike enough to decide which speech should be heard. It represents consummate optimism: our nation is founded on the proposition that the good speech triumphs in the marketplace of ideas.
The proponents of a flag-burning amendment claim that burning a flag is not speech but conduct, therefore not First Amendment protected and subject to regulation. There are many obvious arguments, used in every debate on the subject, which prove them wrong. Burning a flag is the customary way to "retire" a worn out flag--it would not be respectful to throw it in the garbage. So we already have a crime involving a mental state--did you burn the flag with respect or with anger in your heart? What this really means is: what were you trying to communicate by burning the flag? Clearly it is a speech crime that is contemplated.
If further proof is necessary, a little semiotic analysis sheds a lot of light on the issue. The "science" of semiotics, as described by Roland Barthes, posits that the merger of a "signifier" (a thing or image) and "what is signified" (an idea) creates a "sign". For example, a rose + passion=the rose as sign. However, over time, a merger occurs between the signifier and the idea it expresses, so that the concept of the rose and of passion become almost indistinguishable. At this point, the sign is ready to be used as a signifier again, associated with another idea to create a new sign.
Think about the the U.S. flag as sign. It represents the merger of a signifier--a particular collection of stars and stripes in red, white and blue--with certain ideas. The flag has already been through several rounds of the transformation of signifier to sign and back again. The reconstruction of the signified at each stage of its history is an archaeological process. But, as Barthes observes, old significances are rarely lost; more often, they are warped out of shape and sublimated to new ones, but can still be recaptured.
The signifier is just a thing without meaning until it is joined with an idea to form a sign. A black pebble is a natural object until it is given to a citizen, who, by dropping it into a box, will cast a vote for the death penalty for Socrates. Then, joined with the idea of the vote for death, it becomes a sign. Similarly, the flag as signifier is a simple manufactured object. The original idea of the flag as sign was the purest one: it stood for the new nation which was most completely expressed in a Constitution which included the Bill of Rights. When first created, the flag as sign represented not only love of country but liberty, which included the freedom of speech.
In later decades, the flag became a signifier again and again as it was combined with ideas such as manifest destiny to form new signs. It was carried as our standard into shameful places like Sand Creek, where the U.S. Army indiscriminately murdered Indian women and children, commanded by officers whose policy was extermination. While it never has ceased to be associated with patriotism, the love of our country, its association with liberty has, as Barthes would say, become deformed, like a crushed relic five levels down in the ruins of Troy. By 1970, when a lot of young people were burning flags, it represented imperialist and self-deluded military adventures, as well as a hatred of dissent and of the young, and a call to mindless obedience as represented in the slogan "My Country Right or Wrong" that was often associated with the flag. The flag's original significance, representing the triumph of good speech in a forum where all voices were heard, was unknown to most people. In May 1970, in the week after the Kent State killings, patriotic construction workers descended from building sites around Wall Street like furies from hell, beating young demonstrators some of whom were crippled for life. A persistent rumor at the time said that men in suits, with American flag pins in their lapels, directed the carnage. President Nixon was captured on tape asking aides to arrange for the Secret Service to beat demonstrators. Anyone who burned a flag in 1970 was not burning the idea of liberty but was burning authoritarianism and hatred.
I love this country and would not want to live anywhere else (unless the Christian Coalition forces me) but am also, as any reasonable citizen should be, aware of its faults. The flag as sign has been pre-empted over and over by jingoistic scoundrels. While most reasonable and good people are patriots, some have not been treated well enough by this country to be. On the other hand, the most verbal patriots often seem to be scoundrels--and I agree with the proposition that patriotism is the last refuge of a scoundrel. The young man who burned the flag leading to the latest Supreme Court case was protesting the murderous U.S. policy in Latin America. He too, was burning an idea--the idea of murder as an instrument of foreign policy.
Burning a flag is the use of a flag as a signifier to create a new sign. The flag is now combined with the idea that what the U.S. is doing or saying in a given situation is wrong. The burning flag itself is a semiotic sign in which the earlier levels of significance can still be detected, but are distorted just as the flame itself distorts the flag.
What else is needed to prove that burning a flag represents the communication of an idea? If we all agreed that the flag being burned was nothing but an object without meaning--a signifier-- there would be no need to make laws about it as long as it was the legal property of the person burning it. We only get incensed because of our perception that a sign, not a signifier, is being burned. The conduct is not reprehensible in itself, as when a loving caretaker burns a worn out flag. It is the speech that is considered reprehensible and that Congress desires to punish, by pretending that it is conduct and not speech.
Let me anticipate an argument that burning a human being is also speech and is a semiotic sign as well. Someone has probably done a semiotic analysis of photographs of Southern lynchings. But a flag is property, and a human being is not. No-one has the right to express beliefs through harming another. But the American concept of property says that I may destroy my handkerchief without having to explain myself to anyone. If a flag is treated differently than a handkerchief, it is only because of speech--what it signifies, not what it is.
The ultimate futility of a flag burning amendment is expressed through the following thought experiment. Suppose I start a company to manufacture objects which resemble the U.S. flag but which bear, on the bottom stripe, the words "This is not a flag" (if its all reet with Magritte). Just to avoid any possible accusation that I am defacing the U.S. flag to create my product, I will print the words "This is not a flag" first, then overlay the stars and stripes. By definition, what I have created cannot be an American flag, because our flag does not contain the words "This is not a flag" on the bottom stripe. Therefore, I would assume that protestors will be able to express themselves freely by burning my product, without violating any law. In fact, they should be able to burn my product with impunity, even partly rolled up with the words "This is not a flag" invisible, as even with those words hidden, the product is not an American flag. All right now: will the sight of someone burning my product make you any less angry? Would it make you any less angry even if the words "This is not a flag" are visible? If not, then you are not objecting to the destruction of a flag, but to the ideas being expressed about this country. In which case, we may as well have an amendment which carves out anger at and criticism of the U.S. from the Bill of Rights. Then we will have, as Nat Hentoff said, "free speech for me, but not for thee."