My thought, when I heard him say that, was, "Well, we are in bizarre times when igniting a piece of cloth is a form of speech." But he's actually right. The Supreme Court, in 1989, decided that flag burning is in fact "symbolic speech," contorting the Bill of Rights into a shape most painful. But protected it is.
My next thought was, "That's right, Bill, but that's the whole point behind the passage of a Constitutional amendment - to instruct the court to never consider flag burning a form of speech again. Or, in other words, to unprotect it."
The O'Reilly episode was brought to mind when I read this:
Wow. I don't know who Jason Vick is but, since Collegiate Times is Virginia Tech's student newspaper, I'll assume he is an educatee there and is (a) young enough to have not lived in the 200 years when flag burning was in fact illegal but (b) old enough and educated enough to know that to be the case. Flag burning was, until 1989, against "the harsh and authoritarian" law in every state in the land.
America Should Not Restrict Flag Burning
Jason Vick, Collegiate Times
It appears that Congress has yet to outgrow its desire to pass a flag-burning amendment to the constitution. Along with Bush’s push for a constitutional amendment banning same-sex marriage, conservatives in Congress, along with Hillary Clinton and other Democrats, are pushing for another go at the perennial amendment to ban flag-burning.
The absolute absurdity of such an amendment has not been fully conveyed to us. No matter how vulgar, how profane, how insulting, offensive and perverse an act of protest is, so long as no physical harm comes of it, the state has no place legislating its restriction.
The freedom of assembly and freedom of speech enshrined in the First Amendment indicates that when citizens are assembled, they may speak in protest as they choose, not as the government regulates.
Any such step towards the regulation of non-violent, symbolic protest is a dangerous step down a harsh and authoritarian path. Such an amendment sounds like it would fit in all too well with our ugly history of sedition acts and treason laws used to target dissidents in wartime. It is, and will always be, simply unacceptable. (link)
And Jason Vick falls into the same trap Bill O'Reilly did - albeit with a good deal more hyperbole. "The freedom of speech is enshrined ... "
I have to tell you, I've been on both sides of this issue at various points in time over the years, especially in those crazy years when I flirted with libertarianism. And I may change my mind yet again before I die. Which means I'm not a fanatic and will be able to live with myself whatever is decided (and will continue to amuse myself with the thought that putting a match to a flag is a verbal act).
But young Jason hits on the argument that I think makes the case for flag desecration to be prohibited by an amendment to the Constitution. It's in these words:
No matter how vulgar, how profane, how insulting, offensive and perverse an act of protest is ...There are many, many people in this country who treasure the tangible symbol (another symbol; why isn't it "protected speech?") of the USA - the red, white, and blue - and are deeply aggrieved by those who inflict damage upon it. They want their government to protect that symbol from harm. And if the Supreme Court stands in their way, which it decided to do, they go around it by having the legislature enact a law that the populace subsequently votes up or down that then, if supported by enough people, becomes the law of the land. That's how we do things in this country. Separation of powers and all that.
But to say that we can't change the Constitution because it would violate the Constitution (O'Reilly!) is a little silly. And wrong.
Lest we forget, it all gets back to this:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."