Two Veterans Disagree over Whether Flag Burning Should Be Protected Speech

Part I: Patrick H. Brady; Part II: Gary E. May

In the 1989 case of Texas v. Johnson, the Supreme Court by a 5-4 margin overturned the conviction of a man convicted under a state law for burning an American flag. The Court majority ruled that flag burning was an exercise of symbolic speech expressing a political point of view and was therefore protected under the First Amendment. Whether flag burning constitutes protected speech continues to be debated in the United States, with some calling for a constitutional amendment specifically authorizing laws to ban the desecration of the flag. The U.S. Senate Committee on the Judiciary held hearings on a proposed flag burning amendment in March 2004; the following selection consists of excerpts from the testimony of two American veterans regarding the proposed amendment. Part I is by Patrick H. Brady, a retired army major general and the chairman of Citizens' Flag Alliance, a coalition of organizations that supports a constitutional amendment prohibiting flag burning. Part II is taken from the testimony of Gary E. May, a Vietnam War veteran, a professor of social work at the University of Southern Indiana, and the chairman of Veterans Defending the Bill of Rights, a group that opposes any flag desecration constitutional amendment. Their clashing arguments provide an illustration of the ongoing emotional debate in the United States over free expression and the First Amendment.

Source

Part I: Patrick H. Brady, testimony before the U.S. Senate Committee on the Judiciary, Washington, DC, March 10, 2004. Part II: Gary E. May, testimony before the U.S. Senate Committee on the Judiciary, Washington, DC, March 10, 2004.

Primary Source Text

Part I

In 1989 the Supreme Court, in response to a flag burning by a communist, amended the Constitution by inserting flag burning into the Bill of Rights. Their decision took away a fundamental right of the American people, a right we possessed since our birth as a nation, the right to protect our flag. We believe that decision was an egregious error and distorted our Constitution. We do not believe the freedom to burn the American flag is a legacy of the freedoms bestowed on us by Madison and Jefferson and Washington and the other architects of our Constitution. To distort the work of these great men unable to defend themselves, to put flag burning side by side with pornography as protected speech, is outrageous.

We believe that some elements in our society seek to amend the Constitution through the courts out of the bright light of the public square where they would surely fail. The ACLU [American Civil Liberties Union] has said they are the guardians of the Constitution and that their hope for their agenda is through the courts. We believe that our hope is in the Constitution as defined by our Founding Fathers and that we the people are the guardians of the Constitution. One judge said the Constitution is what the courts say it is! We believe the Constitution is what the Founding Fathers said it was and it cannot be amended without the will of the people. . . .

We believe that legalizing flag burning, in addition to disfiguring the Constitution, also raises values issues and questions the kind of people we have been and want to be. We believe that our laws should reflect our values. Flag burning is not a value of the American people. . . .

We believe symbols are indispensable in a democracy. They have been called the natural speech of the soul. Our gratitude for the great bounty that is America is expressed through symbols: grave stones, obelisks, walls and the greatest of all symbols, Old Glory. The word "symbol" is from the Greek meaning a half token, which when united with its other half identified the owner. It is meant to recognize something far more elaborate than itself. That something, the other half token of the flag, is the Constitution and we the people are the owners. September 11 reminded all Americans of what veterans have always known: the unifying, comforting and inspirational magic of Old Glory, its unique and indispensable value to our society. . . .

We believe our battle for our flag is a battle for our Constitution. Our concern is not those who desecrate the flag; our concern is those who desecrate our Constitution by calling flag burning "speech." If we did not act on our belief, and correct the errors of the Court, we would violate our oath and our pledge. We would be cowards not worthy of the sweat and blood and tears of those who gave us our Constitution and all we have. We could not face the greatest generation, or the silent generations; we could not face our children; we could not face ourselves. This is a sacred debt to our Founders, to America's nobility—our veterans—to our patriots and to America's future. . . .

Fact and Fiction

FICTION: Burning the American flag is protected "speech" as defined by the First Amendment to the Constitution.

FACT: Flag burning is not speech as defined by our Founding Fathers in the First Amendment, which reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." James Madison, who wrote the First Amendment, condemned flag burning as a crime. Thomas Jefferson agreed with Madison and made clear in his writings that "speech" in the First Amendment meant the spoken word, not expressive conduct. To say otherwise made freedom "of the press" a redundancy. In fact, the words "expression" and "expressive conduct" are not in the Bill of Rights, and for good reason. Activist judges have added them to the Constitution in order to promote their own political agenda.

Since our birth as a nation, we the people have exercised our right to protect our flag. This right has been confirmed by every Chief Justice of the United States and Justices on five Courts in the last century who denied that flag burning was "speech." This fact is also confirmed by current constitutional experts, 70 percent of the Congress, the legislatures of all 50 states and more than three out of four Americans.

FICTION: The flag amendment would amend the Bill of Rights for the first time.

FACT: The Supreme Court amended the Bill of Rights in 1989 when they erroneously called flag burning protected speech and took away our freedom to protect our flag. And they did so without the consent of we the people, an act forbidden by the Constitution. The flag amendment is an exercise of the true ownership of we the people over our Constitution. The flag amendment restores the Bill of Rights to the meaning intended by the Founders. The flag amendment takes ownership of our flag back from the Court and returns it to the people where it belongs and where it resided since our birth as a nation. Our question to those who spout this fiction: If the Supreme Court in 1989 had voted to protect the flag, would they then have amended the Bill of Rights?

FICTION: Flag burnings are rare and not important enough to justify changing the Constitution to punish a few miscreants.

FACT: First, there have been hundreds of flag desecrations since the Supreme Court's 1989 decision. Second, the flag amendment does not change the Constitution, but restores it. In America the frequency of an evil has nothing to do with laws against that evil. Shouting "fire" in a crowded theatre or speaking of weapons in an airport are rare occurrences, but we have laws against them and we should. It is important to understand that those who would restore the right of the people to protect the flag are not concerned with punishing miscreants who desecrate it. They are not the problem. The problem is from those miscreants who desecrate the Constitution by calling flag burning "speech." We are not amending the Constitution only to protect the flag. We are doing it primarily to protect the Constitution. . . .

Enemies of the Constitution

The flag burners are not the enemies to our Constitution. It is those who call flag burning "speech," who seek to control our Constitution, who are the real enemies.

According to Webster's Dictionary, "speech" is "the act of expressing thoughts, feelings, or perceptions by articulation of words; something spoken; vocal communication, conversation."

Our courts wrongly tell us that prayer is not protected speech, but pornography is; they will not allow the Bible or the Ten Commandments in our schools. The Supreme Court prohibits any demonstration on its steps, but allows Old Glory to be burned on our streets.

Abraham Lincoln once asked how many legs would a dog have if you called his tail a leg. The answer is four. The Supreme Court counted the tail when it said burning the flag was "speech." They were wrong. Desecration of the flag is clearly conduct. However, what concerns us most is not those who defile our flag, but those who defile our Constitution by calling flag burning speech.

Part II

Good morning. I am extremely flattered and humbled by your invitation and interest in listening to my thoughts and those of other veterans about the proposed amendment to the Constitution. I gladly accepted the invitation as yet another opportunity for me to be of service to my country.

As a Vietnam veteran who lives daily with the consequences of my service to my country, and as the son of a WWII combat veteran, and the grandson of a WWI combat veteran, I can attest to the fact that not all veterans wish to exchange fought-for freedoms for protecting a tangible symbol of these freedoms. I oppose this amendment because it does not support the freedom of expression and the right to dissent.

This is among the core principles under our Constitution that my family and I served to support and defend. It would be the ultimate irony for us to have placed ourselves in harm's way and for my family to sacrifice to gain other nations' freedoms and not to protect our freedom here at home. . . .

Wounded in Vietnam

I joined the U.S. Marine Corps while still in high school in 1967. This was a time of broadening public dissent and demonstration against our involvement in Vietnam. I joined the Marines, these protests notwithstanding because I felt that it was my duty to do so. I felt duty-bound to answer President Kennedy's challenge to "ask not what your country can do for you; ask what you can do for your country". My country was asking me to serve in Vietnam, ostensibly because people there were being arbitrarily denied the freedoms we enjoy as Americans.

During my service with K Company, 3rd Battalion, 27 Marines following the Tet Offensive of 1968 in Vietnam, I sustained bilateral above the knee amputations as a result of a landmine explosion on April 12, 1968. My military awards include the Bronze Star, with combat "V", Purple Heart, with star, Vietnam Campaign, Vietnam Service, and National Defense medals. . . .

A few years back, I mentioned the anniversary of my wounding to a colleague and asked her what she was doing in 1968. Somewhat reluctantly, she said "I was protesting the war in Vietnam." I was not offended. After all, our nation was born out of political dissent. Preservation of the freedom to dissent, even if it means using revered icons of this democracy, is what helps me understand losing my legs.

The American flag stands for a long history of love and loss, of war and peace, of harmony and unrest. But it also stands for the history of a nation unsatisfied with the status quo, of a nation always in search of a greater truth, a more perfect union. Surely it does not stand for a nation where we jail those who peacefully disagree with us, regardless of the abhorrent nature of their disagreement.

The strength of our nation is found in its diversity. This strength was achieved through the exercise of our First Amendment right to freedom of expression—no matter how repugnant or offensive the expression might be. Achieving that strength has not been easy—it's been a struggle, a struggle lived by some very important men in my life and me. . . .

Dissenting Voices Must Be Heard

As offensive and painful as flag burning is to me, I still believe that those dissenting voices need to be heard. This country is unique and special because the minority, the unpopular, the dissenters and the downtrodden, also have a voice and are allowed to be heard in whatever way they choose to express themselves that does not harm others. The freedom of expression, even when it hurts, is the truest test of our dedication to the belief that we have that right.

Free expression, especially the right to dissent with the policies of the government, is one important element, if not the cornerstone of our form of government that has greatly enhanced its stability, prosperity, and strength of our country. This freedom of expression is under serious attack today. The smothering, oppressive responses to publicly expressed misgivings about our incursion into Iraq and ad hominem attacks against those who dare to express them are alarming. "Supporting our troops" does not mean suspending critical analysis and muffling public debate and discourse.

Freedom is what makes the United States of America strong and great, and freedom, including the right to dissent, is what has kept our democracy going for more than 200 years. And it is freedom that will continue to keep it strong for my children and the children of all the people like my father, late father in law, grandfather, brother, me, and others like us who served honorably and proudly for freedom.

The pride and honor we feel is not in the flag per se. It is in the principles for which it stands and the people who have defended them. My pride and admiration is in our country, its people and its fundamental principles. I am grateful for the many heroes of our country—and especially those in my family. All the sacrifices of those who went before me would be for naught, if an amendment were added to the Constitution that cut back on our First Amendment rights for the first time in the history of our great nation. . . .

An Assault on the First Amendment

I respectfully submit that this assault on First Amendment freedoms in the name of protecting anything is incorrect and unjust. This amendment would create a chilling environment for political protest. The powerful anger that is elicited at the sight of flag burning is a measure of the love and respect most of us have for the flag.

Prohibiting this powerful symbolic discourse would stifle legitimate political dissent. If it is to be truly representative of our cherished freedoms, the flag itself must be available as a vehicle to express these freedoms.

This is among the freedoms for which I fought and gave part of my body. This is a part of the legacy I want to leave for my children. This is among the freedoms my grandfather was defending in WWI. It is among the freedoms my father and late father in law defended during their combat service during WWII. It is among the freedoms that the veterans whose voices you heard through me earlier in my testimony fought to preserve and extend.

I believe that it is time for congress to pay more attention to the voices of ordinary veterans who know first hand the implications of tyranny and denied freedoms. Our service is not honored by this onerous encroachment on constitutionally guaranteed freedoms.