Burning One and Flying the Other

Eugene Volokh links to his previous critique of the flag-burning amendment he wrote a few years ago, and I find it so blindingly obvious that I cannot believe it never occured to me before. The key 'grafs of his piece:

"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that's not exactly how the proposed flag protection amendment reads -- I've added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn't be protected by the First Amendment because it isn't "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I'm wrong, then both should be unprotected.
-SNIP-
But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments? Would you feel better about America because of them?

Read the whole piece. It is a powerful bit of writing.