Senator Clinton, in Pander Mode - New York Times

Senator Clinton, in Pander Mode - New York TimesDecember 7, 2005
Senator Clinton, in Pander Mode

Hillary Clinton is co-sponsoring a bill to criminalize the burning of the American flag. Her supporters would characterize this as an attempt to find a middle way between those who believe that flag-burning is constitutionally protected free speech and those who want to ban it, even if it takes a constitutional amendment. Unfortunately, it looks to us more like a simple attempt to have it both ways.

Senator Clinton says she opposes a constitutional amendment to outlaw flag-burning. In 1989, the Supreme Court ruled that flag-burning was protected by the First Amendment. But her bill, which is sponsored by Senator Robert Bennett, Republican of Utah, is clearly intended to put the issue back before the current, more conservative, Supreme Court in hopes of getting a turnaround.

It's hard to see this as anything but pandering - there certainly isn't any urgent need to resolve the issue. Flag-burning hasn't been in fashion since college students used slide rules in math class and went to pay phones at the student union to call their friends. Even then, it was a rarity that certainly never put the nation's security in peril.

The bill attempts to equate flag-burning with cross-burning, which the Supreme Court, in a sensible and carefully considered 2003 decision, said could be prosecuted under certain circumstances as a violation of civil rights law. It's a ridiculous comparison. Burning a cross is a unique act because of its inextricable connection to the Ku Klux Klan and to anti-black violence and intimidation. A black American who wakes up to see a cross burning on the front lawn has every right to feel personally, and physically, threatened. Flag-burning has no such history. It has, in fact, no history of being directed against any target but the government.

Mrs. Clinton says her current position grew out of conversations with veterans groups in New York, and there's no question that many veterans - and, indeed, most Americans - feel deeply offended by the sight of protesters burning the flag. (These days, that sight mainly comes from videos of the Vietnam War era; the senator's staff did not have any immediate examples of actual New York flag-burnings in the recent past.) But the whole point of the First Amendment is to protect expressions of political opinion that a majority of Americans find disturbing or unacceptable. As a lawyer, the senator presumably already knows that.