As it happens, I agree with this editorial that a flag-burning amendment is a waste of time and effort -- it's not as if there's a national epidemic. But I don't agree with the newspaper's reasoning that such a measure would somehow dilute the First Amendment:
The writers of the Constitution and the Bill of Rights never envisioned freedom of speech applying only to pleasant words. There is no need to amend the First Amendment.
I see the opposite problem. The First Amendment has been expanded far beyond its original intent, including by proposals such as this one. What the writers of the Bill of Rights envisioned was protecting actual speech, especially the robust political speech so vital to a healthy democracy. I doubt very much if they intended to protect nude dancing or Karen Finley's right to smear herself with chocolate in public, but that's where we've come to.
Over the years, courts have moved beyond actual speech and way beyond political speech. The first layer of protection added was "expressive conduct." Since conduct frequently accompanies speech, it makes sense to extend the First Amendment's protections to include such things as picketing and marching and door-to-door solicitations by those such as religious proseltyzers. Then courts went to the next logical step and added "symbolic conduct." That's where we get into such things as nude dancing and flag burning. Courts have been mixed as the First Amendment has pushed into these new areas. In the '60s, for example, the Supreme Court held that wearing peace-symbol armbands was protected, but burning draft cards, because it involved illegal behavior, was not.
The more vaguely defined the connection to the First Amendment and the closer we move to conduct and away from actual speech, the more it is legitimate to ask whether "free speech" is actually involved. There have always been exceptions to free speech anyway. Obscenity, for example, has never been covered by the First Amendment; justices have disagreed strongly on exactly what it is, but no Supreme Court in history, from the most liberal to the most conservative, has ever granted it protection. Defamation isn't protected or breaches of the peace or "fighting words" or incitements to crime or sedition. None of these exceptions involve prior restraint, mind you, but what can or cannot be punished after the deed is done.
The First Amendment was never intended to cover everything people say and do in all places under all circumstances. And, as much as it has been expanded, it still isn't that all-inclusive. As important as the amendment is, it represents one value that must compete with others.
