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Monday, July 04, 2005


Hatchet Job on the First Amendment

A July 4th editorial in Utah's The Daily Herald expresses appropriate shock and disdain at Senator Orin Hatch's flag amendment proposal, which seeks to modify the Bill of Rights. This from a man who less than 1% of Republicans thought could or should be President. If Hatch ever wondered why!!!

Fortunately for free speech, the Supreme Court has not suffered the peculiar intellectual disconnect that leads Sen. Hatch and others to distinguish between expressive words and expressive acts. The court correctly recognizes flag protest not as speech per se but as what may be called speech per quod -- which is to say, it amounts to speech -- and properly subjects it to free-speech analysis under the First Amendment.

The same logic that would validate one's act of waving a flag enthusiastically in a parade to convey a patriotic message also validates the protester's burning of a flag to express objections to American politics or policy.

The only difference is that in the first example, Sen. Hatch approves of the message and thus supports the act. In the second he rejects the message and would make the act a crime.

The bottom line now becomes clear: Notwithstanding all the fine
words about core American ideals, sacred symbols and the like, the primary effect of Sen. Hatch's amendment is the suppression of dissent.


So long as the constitutional right to burn effigies of corrpupt politicians isn't outlawed, Senator Hatch might inspire all sorts of speech he never intended.

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