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Hillary Clinton Pandering on Flag Burning

Richard Cohen takes Hillary Clinton to task for pushing a blantantly unconstitutional ban on flag burning in a shameless attempt to reposition herself for a presidential run.

Star-Spangled Pandering (WaPo, A33)

Last month Justice Antonin Scalia was politely quizzed by Norman Pearlstine, the outgoing Time Inc. editor in chief. The event, held in Time Warner’s New York headquarters, was supposedly off the record, but so much of it has already been reported that it will not hurt to add Scalia’s views on flag burning. He explained why it was constitutionally protected speech. It’s a pity Hillary Clinton was not there to hear him.

The argument that this famously conservative member of the Supreme Court advanced — actually, reiterated — was that while he may or may not approve of flag burning, it was clear to him that it was a form of speech, a way of making a political statement, and that the First Amendment protected it. I could not agree more.

Clinton, apparently, could not agree less. Along with Sen. Robert Bennett, a Utah Republican, she has introduced a bill that would make flag burning illegal. It is probably important to note that this is not a proposed constitutional amendment, and it is written in a cutesy way that does not explicitly outlaw all flag burnings — just those intended to “intimidate any person or group of persons.” That’s a distinction without a difference to your average police officer.

Quite so. I actually am less critical than Cohen of Clinton’s positioning herself in this way; she’s a politician, after all, and doing things to increase her popularity is part of that game. Still, Cohen is right:

The First Amendment is where you simply do not go. It is sacred. It protects our most cherished rights — religion, speech, press and assembly — and while I sometimes turn viscerally angry when I see the flag despoiled, my emotions are akin to what I feel when neo-Nazis march. Repugnant or not, popular or not, it is all political speech. Her sponsorship of the flag measure calls for reconsideration all around — either by Hillary Clinton and her support of the flag bill or by liberals and their support of her.

Indeed, the reaction that Cohen and I have to flag burning is precisely why it constitutes speech. While it’s a much less visceral issue, I find the pandering of John McCain and others on “campaign finance reform” –a/k/a “restrictions on political speech” even more offensive, in that the actual impact on open discourse is much greater.

As an aside, Scalia’s position should not be surprising, even to those who didn’t realize how he voted in Texas v. Johnson. An intellectually honest textualist could have voted no other way. (I had forgotten, though, that Sandra O’Connor was among the dissenters.)

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. opposes our right to free speech, and supports the use of preemptive force. Based on these points, along with the rest of her bizarre political opinions, we can tell she is dangerous. Unfortunately, as she continues her bid for the Democratic nomination, we are coming to realize she

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  2. Attytood says:

    a middle ground on abortion, somewhere out there — she has a remarkable knack for making it sound phony, as if it just drifted through the two-way glass of a focus group room. And when she’s wrong — like trying to have it both ways on flag burning — it hits such a false note that it would make William Hung sound like Pavarotti in comparison. Iraq? We don’t know what she believes on Iraq. Neither does she. Ironically, when we read her odd comments on kids and advertising, the first politician

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  3. Attytood says:

    a middle ground on abortion, somewhere out there — she has a remarkable knack for making it sound phony, as if it just drifted through the two-way glass of a focus group room. And when she’s wrong — like trying to have it both ways on flag burning — it hits such a false note that it would make William Hung sound like Pavarotti in comparison. Iraq? We don’t know what she believes on Iraq. Neither does she. Ironically, when we read her odd comments on kids and advertising, the first politician

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  4. Anderson says:

    Given the general suspicion that the Clintons have no principles, Hillary isn’t doing herself any favors on this issue.

    (“No principles, only appetites,” my dad said of Bill, quoting either Bismarck or someone describing Bismarck. Need to google that.)

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  5. McGehee says:

    Indeed, the reaction that Cohen and I have to flag burning is precisely why it constitutes speech.

    Um, no. Lots of things make people viscerally angry. Doesn’t make ‘em speech.

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  6. McGehee,

    Um, yes. These other things are speech unless they break some other law, such as murder. You might have a strong visceral reaction to seeing it but it’s not wrong because of your reaction, it’s wrong because it’s murder. Burning a flag infringes on no one’s rights. Murder does.

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  7. James Joyner says:

    McGehee: My point is that burning, say, a pile of leaves isn’t generally “speech” because there is no message sent. Burning a flag is actually a good thing if it’s done by the VFW after it’s old and tattered. The reason we outlaw flag burning protests is because of the speech it conveys–disrespect to the country and what it stands for.

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  8. PAXALLES says:

    Senator Clinton Flag-ellated Over Pandering

    Senator Clinton Flag-ellated Over Pandering

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  9. LJD says:

    “These other things are speech unless they break some other law…”

    SO whipping it out in a shopping mall is a form of speech also, right? I mean, no one was hurt…

    “You might have a strong visceral reaction to seeing it but it’s not wrong because of your reaction”

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  10. McGehee says:

    My point is that burning, say, a pile of leaves isn’t generally “speech” because there is no message sent.

    If you had put it that way I would have had no objection. But this isn’t the first time you’ve used the same formulation I objected to here, to defend flag-burning as “speech” — and I believe I’ve objected previously on the exact same grounds.

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  11. James Joyner says:

    McGehee: Could be. I’ve made some arguments enough times that I resort to shorthand presuming people know what I mean. It’s probably not a good practice.

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