| 30 March 2005 Expressive Conduct I'm fried. It cannot be Wednesday; it seems like it has to be Thursday, at least. The day-trip to New Jersey yesterday took it out of me, that and the all-day session with the delegation from the ministry of defense of a sometime allied nation, and the fact that I wasn't in the government anymore, and then the long cab ride through the brown countryside and tumbled rocks, and the pan-handlers practicing protected speech outside the heroic proportions of Newark's Pennsylvania Station. The famous New York architectural firm of McKim, Mead & White designed the place, and it opened for business in 1935. The plaque on the wall said so. I was moderately gratified to find that the train worked as advertised, and I dragged myself back into Big Pink about fifteen hours after I left. I stripped off my suit, climbed into my jimmies and when I turned on the computer I looked blankly at the 72 e-mails in the queue. Most of them were alarmist press clippings forwarded by alert members of a veteran's organization I belong to, and apparently drink too much coffee. Most of it them were about China. I yawned and hit delete. I perked up when I came to the surprising tally of the living and the dead. I had been sealed up all day, out of contact with the world. Johnny Cochran and former Senator Howell Heflin were in the latter category, and Terry Schiavo had been joined in former-barely- by the Reverend Jerry Falwell. The names spanned the political spectrum, Cochran representing the triumph of the renegade who used the process against the status quoi; Heflin the artful centrist, master of process; Falwell the social conservative, and Terry being the mute result of the collision of social action and judicial process. OK, it's glib, I know, but I was tired. The last message I read was a comment from an alert reader who demanded to know the position of a prominent conservative on the Supreme Court. Was the Justice a process or social conservative? He claimed to be serious, and he remembered something about another emotional social cause, the burning of the Old Glory. I debated the matter, nerves jangled from travel. Should I brew coffee or pour a stiff drink? My fingers began to fly as I answered. Antonin Scalia raises a lot of bile on the left, I wrote, but I have always found him to be the very model of a libertarian "process" Conservative. Your recollection of his opinion on the flag-burning case before the Supreme Court is spot-on, although he did not write the majority opinion. It was 1990 when the Court took up the matter of United States v Eichman . In 496 U.S. 310, the Supremes invalidated a federal law against flag desecration as a violation of the First Amendment. The case was argued as a bookend with United States v. Haggerty. The two cases with one issue resulted from Eichman's burning of the Flag on the steps of the Capitol, and Haggerty's burning of the Flag in Washington State. The issue at hand was the Flag Protection Act, which was passed in 1989 at the urging of Veteran's Groups and other social activists. It was not radically dissimilar to the Schiavo Bill, rushed through the Congress two weeks ago; a feel-good exercise in trifling with the Constitution. The Supremes had ruled that flag burning was protected speech in Texas v Johnson , 491 U.S. 397, 1989. The Flag Protection Act, passed in reaction, made the burning or other desecration of the Flag a crime, while simultaneously providing for the respectful incineration of worn or soiled flags, the traditional and honorable means of disposal. Eichman was argued in May 1990 and decided in June. The 5-4 decision was issued in June. Voting lines were identical to Texas v. Johnson . The upshot of the majority opinion was that the government's interest in preserving the flag as a symbol did not outweigh the individual right to disparage that symbol through expressive conduct. Justice William J. Brennan , arguably one of the most liberal judges of the modern era, wrote the Court's opinion. He was joined by Thurgood Marshall, Harry Blackmun, Anthony Kennedy and process-conservative Antonin Scalia. Brennan retired the next month, with no apparent connection. In the minority were John Paul Stevens, William Rhenquist, Whizzer White and Sandy O'Connor, who had been told to "Lighten Up" by famed Redskins running back John Riggins when they were seated together at the Washington Press Club "Salute to Congress" Dinner in 1985. Riggo's advice was an eerie foreshadowing of the majority opinion in the matter of the flag, and was delivered shortly before the Hall-of-Famer slumped down at the Dinner and took a nap under the table. I have always admired a man who said what he thought. Riggo thought both the process and social activism were purely relative. He might be the last of the philosopher Superbowl heros. You will recall that Sandy was in the minority on flag burning. In her majority opinion overturning the Pennsylvania Supreme Court decision on Erie, PA, v Kandyland , O'Conner found striking similarities to Barnes v. Glen Theatre, Inc ., 501 U.S. 560, that had risen to the docket in 1991. She reasoned that being "in a state of nudity" is not an inherently expressive condition, and that nude dancing of the type at issue is expressive conduct, and falls "only within the outer ambit of the First Amendment's protection." I don't know where the ambit might be, or actually what an ambit is. But I suspect it has something to do with the collision between social activism and process. Justices Scalia and Thomas joined O'Connor in that one, concurring that nude dancing was conduct, rather than speech. Had the dancers burned flags, it is possible that the outcome would have been different. I looked at the screen, hit “send,†and decided I was done with the day. It is a confusing line between process and social conservatism. But I am going to stay on the lookout for the interesting conduct. The reading public demands it. Copyright 2005 Vic Socotra |