This thing we call freedom remains very much a work in progress.
How much freedom to allow, and to whom, and under what circumstances — lawmakers and judges have juggled these questions since the birth of the nation.
Now the Arizona Legislature faces some of freedom’s most inflammatory issues — "inflammatory" here is meant literally — as it addresses legislation HB2694.
It was born with the intent of prohibiting an act of symbolic speech that most people rightly associate with murder and terrorism. It has been amended in a way that affords us opportunity to consider the bounds of free speech.
The bill originally would have outlawed the burning of a cross "with the intent to intimidate any person or group of persons." Such intent could not be construed from the mere act of setting the blaze; the bill requires other evidence to prove actual malice.
Admittedly, skies over the East Valley have not exactly been filled of late with the smoke of burning crosses. A search of the Tribune’s archives reveals only one such story in the past seven years, and that incident happened in Lake Havasu City.
But a crime does not stop being a crime merely because it is rare, and this particular act is so uniquely pregnant with evil that an enlightened state is well within its rights to ban it. The U.S. Supreme Court said as much last year under the byline of Arizona’s Justice Sandra Day O’Connor.
Interestingly, O’Connor was in the minority when the court ruled 15 years ago that under the First Amendment, flagburning as a form of symbolic speech cannot be prohibited. The newly amended HB2694, which passed the Arizona Senate on Tuesday on a 26-1 vote, is an obvious attempt to circumvent that historic decision.
Its supporters say burning a flag could intimidate military veterans in the same way cross-burning intimidates blacks and other targets of ethnic bigotry.
To equate the two acts is to egregiously insult blacks whose collective, and perhaps even personal, memory is fresh with the stench of atrocities committed in the garish glow of the burning cross.
The veterans whom the Arizona bill purports to protect have no memories of such intimidation. When were they ever lynched after mobs of long-haired radicals burned flags on their front lawns? Where were the secretive nighttime rallies lit by blazing flags, rallies from which hooded leftists rode forth to rape and whip and plunder former members of the U.S. armed forces?
A vast gulf lies between merely giving offense and purposely inflicting genuine terror. That is the historic and cultural difference between burning a flag and burning a cross. The U.S. Supreme Court has recognized the distinction. So should the rest of a free society.