Jonathan Chait, criticizing our flag-burning editorial, writes that “logic has gone up in flames” at NR:
The editors write as if they are completely unaware of the fact that the law has a long precedent for separating out fighting words, or shouting fire in a crowded theater, from legitimate political expression, which enjoys strong protection. Indeed, they seem not to realize that the First Amendment contains any protection whatsoever for freedom of expression other than speech. Do they not realize that, say, publishing a magazine isn’t “speech” either? I suppose they could try to argue for some radically more restrictive interpretation of the First Amendment–excepting, of course, the issue of political donations, where NR favors a massively more lenient interpretation–but they don’t. Instead they write as if they are lacking even the basic, high school-level understanding of free speech doctrine. Depressing.
There are two issues here. First, does it make sense to distinguish between expressions that involve words and those that don’t? (Incidentally, magazine publishing would be protected by the First Amendment’s guarantee of “freedom. . . of the press” even if it were not protected by the free-speech guarantee. Chait seems to be completely unaware of this.) While one can certainly think the distinction is unimportant or even that it breaks down–that, for example, burning a flag is speech in a symbolic language–it doesn’t strike me as an obviously absurd distinction to make. I am pretty sure that in our editorials on campaign-finance regulations, our view has been that spending can’t be regulated on the basis of its being used to finance political speech. The argument is not simply that “money is speech,” so there’s no inconsistency here.
Second, if in arguing about how the First Amendment should be interpreted by the Supreme Court (and others), are you obligated to stick to how it is interpreted by the Supreme Court? The editorial advances an interpretation of the First Amendment that is obviously not based on the Court’s existing “doctrine.” It argues that existing doctrine is wrong on flag burning and implies that it is wrong about a lot else besides. Now again, you can think that the Court is right and NR is wrong. You can think, I suppose, that Constitution means whatever the Court has said it means, and that reasonable constitutional interpretations have to stick closely to the Court’s precedents. But it’s not obvious that you have to think that. If you don’t think that way, you’re not necessarily illogical or ignorant.