WHO'S ON FIRST?
Hentoff, Nat
WHO'S ON FIRST? Nat Hentoff The Atwater Flag Sting Like the other members of the Supreme Court, Justice William Brennan expected—and received—huge amounts of mail on the Webster abortion case....
...therefore to create for the flag an exception to the joust of principles protected by the First Amendment...
...This is the Democrats' gift to the nation two years before the bicentennial of the ratification of the Bill of Rights...
...As a Federal district court in Michigan recently made clear in striking down similar eviscerations of the First Amendment at the University of Michigan, this suppression of objectionable speech is a clear violation of the First Amendment...
...The Democrats had fallen into Lee At-water's trap and, in desperately seeking a way out, they lost their courage and the ability to think clearly...
...devastating weapon against the party of Michael Dukakis, who had let the flag down so badly the year before...
...Which legislator, in Congress or in the states, would dare vote against that amendment—and hope to survive in the next election...
...This article was supported by a grant from the Fund for Investigative Journalism...
...Later, other Democratic members of Congress rallied round William Brennan and the First Amendment...
...If I buy a flag," I asked Larry Tribe, "take it home, and all alone, burn the flag as a protest against the Supreme Court's allowing the execution of sixteen- and seventeen-year-olds, and a neighbor snitches on me to the cops, could I be put in prison for a year...
...He did not visit the nearest flag factory...
...A vote on the Constitutional amendment will follow in both chambers, but it needs a two-thirds vote in each to pass, and even then it must be ratified by three-fourths of the states...
...Nonetheless, in Washington, the Democratic leadership—and nearly all of the rank and file—in both the Senate and the House was in a panic about how to prevent the Republicans from using the flag as a Nat Hentoff is the author of "The First Freedom" and many other books...
...I spoke to Brennan when, according to the press and the Republicans, the nation was aflame with rage at what Brennan and four other members of the Court had done to Old Glory...
...Yet even then, Brennan told me, he had received only a couple of dozen letters...
...Both deny that the flag-burning decision even came up during their luncheon...
...This started the Democrats' rush to get on board the train draped with bunting before it was too late...
...The Washington-based press followed right along...
...Or, as Justice Brennan said in Texas v. Johnson: "There is 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...
...Does that make the Reagan Administration's patriotism suspect...
...The dignified Thomas Foley, speaker of the House, said, in deference to the specter of Lee Atwater, "There is no justification for the burning and disrespect to the American flag—no cause, no issue, no circumstance justifies that...
...The only people who will make this a partisan issue are Democrats if they choose not to support an amendment to protect the American flag...
...They didn't even check to see if there was an "actual firestorm beyond the Beltway...
...The trick is that the motivation of the flag-basher doesn't count...
...And they proposed a new statute that would criminalize destruction or mutilation of the flag—a statute that is dishonest and clearly unconstitutional, for it violates the First Amendment while pretending to save it...
...But the Constitutional amendment...
...any individualized activity with regard to it outside of the purely logistical activity of maintaining or storing of it is bound to convey a message of fealty or revulsion and is 'closely akin to pure speech.'" What the Democrats have been pushing—and on September 12 it was passed by the House 380-to-38—is what legal commentator Stuart Taylor calls a "civil blasphemy bill...
...Therefore, says Laurence Tribe, this is just a vandalism bill...
...It apparently did not occur to them to "bravely do nothing...
...This is the proposed Bush amendment to the U. S. Constitution: "The Congress and the States shall have the power to prohibit the physical desecration of the flag of the United States...
...And Toni House, who directs the Supreme Court's public-information office, said the Court as a whole had gotten only dozens of letters, maybe a few hundred, on Texas v. Johnson—far, far fewer than on the abortion case...
...They stopped that, didn't they, by putting the flag statute in the works...
...The bill has nothing to do with expression, just with destruction...
...While the momentum was rolling, the reporters and commentators assumed that Atwater was right—that untold numbers of citizens were ready to march on the Capitol to string up the flag, along with any members of Congress who did not do the right thing...
...The President has reportedly been informed that somehow, the true Americans out there aren't as excited by all this as they were last year about whether kids can salute the flag as they mumble the Pledge of Allegiance...
...Gulp...
...It doesn't matter if you're yelling your opposition to American policy in South Africa, let's say...
...And Newt Gingrich, licking his chops, said: "If Democratic leaders block the flag amendment to the Constitution, they can go to the country and explain why they bottled it up...
...So the First Amendment isn't involved...
...It's ignored by the statute...
...Yet the University of Wisconsin had its Larry Tribes—Gordon Baldwin, Richard Delgado, and Ted Finman— saying it was okay...
...Yet the Democratic leadership kept on running scared...
...Kerrey's constituents, some of whom were at first as upset as he had been, soon let him know they approved of his decision to leave the First Amendment alone...
...As Judge Frank Coffin of the First Circuit Court of Appeals said in an earlier flag case, Goguen v. Smith (1972): "When the object is a pure symbol, such as the flag...
...There probably will be no Constitutional amendment...
...At first Kerrey had been angered by the decision, but then he actually read Bren-nan's opinion and realized how absurd it is to make the symbol of freedom more important than freedom itself...
...Voting against a similar Senate resolution were only two Democrats—Ted Kennedy of Massachusetts and Howard Metzenbaum of Ohio...
...This summer, for instance, the University of Wisconsin joined a growing number of colleges and universities in punishing bad —racist, sexist—speech...
...The statute will be voted on there in mid-October...
...The Democrats never thought of asking...
...But in 1991, George Mitchell, Thomas Foley, Joe Biden, and many other summer soldiers will be delivering rousing speeches about the need to maintain the integrity of the Bill of Rights at all costs...
...There must be a Constitutional amendment, he said, with the Iwo Jima monument as a backdrop while he drew Excalibur to rescue the flag...
...Lee Atwater, chairman of the Republican National Committee, announced sweetly, "We don't intend to make this a partisan issue...
...This is the Biden statute (there is an equivalent in the House): "Whoever knowingly mutilates, defaces, burns, maintains on the floor or the ground, or tramples upon any flag of the United States shall be fined not more than $1,000 or imprisoned for not more than one year or both...
...Get it...
...He made it plain that he didn't like the decision, but he was also careful to add, "I understand the legal basis for that decision, and I respect the Supreme Court...
...One was Nebraska Senator and Medal of Honor winner Bob Kerrey, who lost a leg in Vietnam...
...Both before and after the decision...
...And as President of the United States, I will see that the law of the land is fully supported...
...Brennan knew of the alleged furor and the alleged command from the masses that a Constitutional amendment be passed immediately to change the First Amendment for the first time in 200 years to exclude flag-desecrators from its protection...
...And it applies to private as well as public flag-assaulters...
...It is not all that difficult to find eminent constitutional scholars to cheapen the First Amendment for the greater good...
...The President had taken this burning issue to the country...
...At the time, I was traveling through the Southwest, a section of the country that pays more mind to George Will than to Anthony Lewis...
...I talked to members of Congress who had received some letters of protest from their constituents, but nothing remotely comparable, they told me, to the bulging bags of mail threatening them with defenestration if Congress were to give itself a pay raise...
...Why did they not—as former Solicitor General Charles Fried suggested— "bravely do nothing...
...He was breathing smoke, not fire...
...Among the small number of Democrats who refused—in the face of the first Republican barrages—to cheapen the First Amendment in fear of the political consequences, there were, in the House: Ted Weiss of Manhattan, George Crockett of Detroit, William Clay of St...
...He was Solicitor General when the Texas flag case was on the way to the Supreme Court, and he refused to file a Government brief supporting the state of Texas against the flag burner...
...By the end of July, Democratic Senator David Boren of Oklahoma—a resolutely conservative state—said he'd gotten no more than 500 pieces of mail on this flag thing...
...So the President, although he has already said that the Democrats' statute is unconstitutional because it won't do the job, may join the Democrats in getting the flag-protection bill through the Senate...
...Had the Democrats, at the beginning, not lost their nerve, neither a Constitutional amendment nor a flag bill would have been approved by Congress because Lee Atwater was playing the role of the Wizard of Oz...
...But why did they need to do anything...
...And his minions began planting the delicious news of the Democrats' excruciating dilemma...
...But he had received more than 10,000 letters on the pay raise...
...You could," said Professor Tribe...
...The third dissenter was Gordon Humphrey of New Hampshire who has an ACLU rating of 14 but knows "an exercise of silliness" when he sees it, and said so...
...They decided to abandon William Brennan and the rest of the Court majority as they deplored and attacked the decision while scrambling to come up with a way to escape what they thought was the wrath of the people...
...There had been Supreme Court precedents specifying that the flag is not a sacred object...
...What Brennan did not expect—and did not receive— was an avalanche of letters following his majority decision that the burning of the American flag is a form of expression protected by the First Amendment...
...Louis, Gus Savage of Chicago, and Ronald Dellums of Oakland, California...
...Presumably they were discussing the alarming rise around the country of attempts to remove books from public schools, and they were planning a Presidential address on the subject...
...It was, after all, not a landmark decision...
...The Democrats proposed the statute to deflect the Constitutional amendment and—even more important from their frightened perspective—to show the country that the eyes of Democrats glisten too when the flag goes by...
...We decline...
...The people are speaking, they are roaring, the countryside is lit with firebrands...
...Joseph Biden, the ever-smiling Democratic Senator from Delaware, proposed that the Democrats get a bill through to punish people who trample on or set fire to the flag...
...His column on First Amendment issues appears four times a year...
...They would not go along with a House rebuke to the Supreme Court...
...I picked up all the papers and watched television news, but there was very little on what that gang of subversives—William Brennan, Antonin Scalia, Anthony Kennedy, Thurgood Marshall, and Harry Blackmun—had done to the Stars and Stripes...
...That's what Fried had done...
...So the Republicans said, and the Democrats believed them...
...You get busted for ruining the piece of cloth...
...This is transparently dishonest because the flag is inherently communicative...
...Other members of Congress were beginning to report that the folks at home weren't as exercised over all this as the Republican apparatchiks claimed they were...
...When the Brennan decision first came down, George Bush did not cry that the sky was falling...
...The concept was that of constitutional scholar Laurence Tribe of Harvard, although other esteemed law professors lent their authority to the idea...
...Soon after, however, the President had lunch with his chief political strategist, Atwater, who, after dark, turns into a neon-lit-roadhouse rock guitarist...
...And so Senator Majority Leader George Mitchell, a former Federal judge and civil libertarian, declared in a sentence that makes no logical Constitutional sense, "I do not believe that Americans have to see the flag that symbolizes their freedom to speak devalued and cheapened in the cause of preserving that freedom...
...They were willing to push a bill contemptuous of the First Amendment rather than allow a greater evil, the Constitutional amendment, to go through...
...Yet it was right after that lunch that the President raised the flag, as he had done so punishingly in the 1988 Presidential campaign...
Vol. 53 • November 1989 • No. 11
