Terrorism and war created a new pathology after 9/11, combining a new wave of patriotism and patriotic expression with a new popular perspective on the scope of free-speech rights and the freedom to dissent. This Article uses several sport related expressive controversies to explore three related ideas. First is the concept of symbolic counter-speech, the principle that if symbols can speak (or act as the vehicle or medium for one message), they must bear the responsive or contrary message. Second is the relationship between the popular free-speech tradition and First Amendment jurisprudence - that is, how the popular commitment to free speech conforms to the understanding expressed and enforced by the courts, especially during the present pathological period and in light of the features that define such periods.' Finally we explore arguments in favor of according special constitutional protection to the flag and its complements against forms of flagrelated counter-speech, which have produced yet another congressional effort at a constitutional amendment to protect the American flag from desecration." The recent examples of flag-related symbolic counter-speech suggest that the real concern underlying "flag protection" is not merely the physical integrity of a singular cloth bearing the red-white-and-blue, stars-and-stripes design, but rather a broader effort to enforce a general respect and reverence for the flag, which necessarily assumes the purity, and impunity from attack, of all patriotic symbolism. If burning a flag is to be proscribed, the same arguments support proscribing the other forms of "disrespectful" flag-related symbolic counter-speech considered here.
Howard M. Wasserman,
, 12 Wm. & Mary Bill Rts. J. 367
Available at: http://ecollections.law.fiu.edu/faculty_publications/71