I propose a new angle on this. Rather than be on the defensive (why should I?), I ask, what conievable interest does the Federal Government have in regulating the combustion of the national flag? I don't see anything
remotely implying the right of congress to regulate poltical expression for being "offensive" - quite the opposite. I see "Congress shall make no law...
abridging the freedom of speech - they can't just give you
some free speech, they have to give you all of it, UNabridged, unedited. And it's not up to congress to decide what is speech and what is not speech - that power is clearly given to the Judiciary (Article III, I believe section II). Notice I'm not using any modifiers like "
protected speech" - speech is speech, you don't need to "protect" it from congress becuase they have
no jurisdiction over it.
Notice the key difference here - between the Supreme Court saying XYZ form of expression causes physical damage and
interpreting it to be NOT speech - as opposed to Congress,
passing a law to declare XYZ expression exempt from protection. SCOTUS has jurisdiction over the 1st amendment; Congress has NO jurisdiction - insofar as said amenmend
explicitly prohibits them passing legislation "abridging" speech.
Passing a consitutional amendment to explicitly remove free speech protection from flag burning is, by necessity, an infringment on the 1st amendment. It restricts the scope of the 1st amendment; such legislation cannot coexist with the 1st amendment as it was originally written and is not compatible with what the Authors intended it to mean.
As to whether the Judiciary considers flag burning free speech, the answer is YES. The Supreme Court
affirms repeatedly that flag burning
is a form of free speech as defined and protected by the First Amendment:
TEXAS v. JOHNSON, 1989
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/texasvjohnson.html
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.
From the Majority opinion:
The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
(emphasis mine)
At his trial, Johnson explained his reasons for burning the flag as follows: "The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time. It's quite a just position [juxtaposition]. We had new patriotism and no patriotism." In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication," to implicate the First Amendment.
Parallel circumstacnes to many of today's flag-burnings which protest the election of a US President.
The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.
(emphasis mine).
This is a pretty recent interpretation - only 16 years old. Let me pick out one last excerpt from this, which I find
especially important and relevant today:
There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the market-place of ideas.We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.
