Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Friday, May 05, 2006

Our Congress Is Working On Legislation

To ban cartoons featuring the Prophet Mohammed. The rationale:

"There are limits on speech, and the balance is tipped in my mind that so many people are so grossly offended by the [cartoons]," said Pennsylvania Republican Sen. Arlen Specter, who heads the Judiciary Committee.

Oh wait, my bad, Sen. Specter actually said people are "so grossly offended by the burning of the flag" that we should pass a constitutional amendment making it illegal to do so. (H/T ACS Blog). That makes all the difference. Punishing someone who mocks your religion is barbaric. Punishing someone who mocks your country is patriotic.

The proposed amendment, which passed the committee 6-3 and supposedly has 57 co-conspirators co-sponsors in the Senate, is, of course, blatant electioneering. In that regard, I can't wait to see how many members of that spineless excuse for an opposition party otherwise known as the Democrats will rush to tell us how much they support this amendment, and how full of traditional values that makes them.

At least one of them has some guts:

Wisconsin Democratic Sen. Russell Feingold said that the amendment would undermine the freedom of expression that the flag symbolizes. "None of us thinks it's OK to burn the flag," Feingold said. "But I believe we must also defend the right of all Americans to express their views about their government, however hateful, spiteful or disrespectful."

Amen brother.

As Justice Brennan put it, in an opinion joined by Justice Scalia:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . .

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. . . . And, precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Again, I say Amen.