Richard Cohen takes Hillary Clinton to task for pushing a blantantly unconstitutional ban on flag burning in a shameless attempt to reposition herself for a presidential run.
Star-Spangled Pandering (WaPo, A33)
Last month Justice Antonin Scalia was politely quizzed by Norman Pearlstine, the outgoing Time Inc. editor in chief. The event, held in Time Warner’s New York headquarters, was supposedly off the record, but so much of it has already been reported that it will not hurt to add Scalia’s views on flag burning. He explained why it was constitutionally protected speech. It’s a pity Hillary Clinton was not there to hear him.
The argument that this famously conservative member of the Supreme Court advanced — actually, reiterated — was that while he may or may not approve of flag burning, it was clear to him that it was a form of speech, a way of making a political statement, and that the First Amendment protected it. I could not agree more.
Clinton, apparently, could not agree less. Along with Sen. Robert Bennett, a Utah Republican, she has introduced a bill that would make flag burning illegal. It is probably important to note that this is not a proposed constitutional amendment, and it is written in a cutesy way that does not explicitly outlaw all flag burnings — just those intended to “intimidate any person or group of persons.” That’s a distinction without a difference to your average police officer.
Quite so. I actually am less critical than Cohen of Clinton’s positioning herself in this way; she’s a politician, after all, and doing things to increase her popularity is part of that game. Still, Cohen is right:
The First Amendment is where you simply do not go. It is sacred. It protects our most cherished rights — religion, speech, press and assembly — and while I sometimes turn viscerally angry when I see the flag despoiled, my emotions are akin to what I feel when neo-Nazis march. Repugnant or not, popular or not, it is all political speech. Her sponsorship of the flag measure calls for reconsideration all around — either by Hillary Clinton and her support of the flag bill or by liberals and their support of her.
Indeed, the reaction that Cohen and I have to flag burning is precisely why it constitutes speech. While it’s a much less visceral issue, I find the pandering of John McCain and others on “campaign finance reform” –a/k/a “restrictions on political speech” even more offensive, in that the actual impact on open discourse is much greater.
As an aside, Scalia’s position should not be surprising, even to those who didn’t realize how he voted in Texas v. Johnson. An intellectually honest textualist could have voted no other way. (I had forgotten, though, that Sandra O’Connor was among the dissenters.)
