Sheila Kennedy on proposals to ban flag burning:
Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people (a category that rather clearly excludes the current occupant of the White House) can understand.
The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)
Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”
The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.
Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.
Flag burning is a virtually non-existent problem, and it's a dumb way to send a message. It may draw attention, but it's more likely to turn off the recipient of the message rather than persuade the recipient toward the flag burner's views.
My first reaction--my gut reaction to flag burning--is "there's an idiot," even if I might agree with the burner's underlying political viewpoint. Still, the act is about sending a message and, as odious as one might find the message, I don't want government to decide which political messages I'm permitted to receive.