
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, October 13, 1995                   TAG: 9510130023
SECTION: EDITORIAL                    PAGE: A-8   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

LEAVE THE BILL OF RIGHTS ALONE

A PROPOSED constitutional amendment to remove political flag-burning from First Amendment protections, which in June passed the U.S. House by a wide margin, is headed toward a vote in the Senate. There, proponents are thought close to the two-thirds majority needed to send the amendment to the states for ratification.

It ought to die in the Senate. The politicians pushing this thing may be cynically pandering. But that's a terrible accusation to level at public officials.

A more charitable explanation is that they're short in the departments of sense of irony, appreciation for the distinction between symbol and substance, feeling for proportionality, and reluctance to trade abiding principle for hot-button rhetoric of the moment.

The irony is that the proposed amendment would erode one of the very freedoms the flag represents. The amendment's proponents, it would seem, place higher priority on the symbol of freedom than on its substance.

In arguing for the flag amendment on today's Commentary page, Stephen B. Presser professes not to see the distinction between flag-burning and, say, vandalizing the Washington Monument or taking potshots at the president as examples of expressive speech.

The distinction, we would think, is obvious. For whatever element of expressive speech they may contain, vandalism and assault are also criminal acts that cause direct harm to other property or persons of other people. To make flag burning a crime for no other reason than that it is the flag is to isolate and outlaw precisely the expressive-speech element of the act.

In one sense, the prospective erosion of liberty is slight. Last year, a grand total of four cases of flag burning were reported in a nation of 265 million souls. As U.S. Sen. Robert Kerrey of Nebraska has pointed out, "The community's revulsion ... has contained the problem without the government getting involved."

Government, however, is sometimes involved, legitimately. State laws against theft, vandalism and incitement to riot apply no less to flag burners than to anyone else. Indeed, all four reported cases last year were prosecuted under one or another of those laws. The U.S. Supreme Court in 1989 invalidated, on First Amendment grounds, only laws that make flag defilement in and of itself a crime.

And the issue runs deeper than merely unnecessary regulation. The amendment opens the way for dangerously unnecessary regulation.

"If [the amendment] is approved," notes William B. Ketter, president of the American Society of Newspaper Editors and editor of The Quincy (Mass.) Patriot Ledger, "the essence of free political speech will drift for the first time from the First Amendment mooring that gives every citizen a constitutional right to challenge, even cast aspersions on, the icons of government."

Wide latitude would be given federal and state governments to define flag defilement - and the First Amendment could no longer serve as a brake on legislative caprice.

Authority for such open-ended demand for the veneration of governmental symbols is what you'd expect in a banana republic, not the United States. It is, of course, hard to imagine political expression more offensive than burning a flag. But the First Amendment isn't there to protect inoffensive political expression.

Senators should love Old Glory sufficiently to kill political maneuvers that would erode the liberty for which it stands.

by CNB