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State Activism and State Censorship, 100 Yale Law Journal 2087 (1991)


Recent political debates prompted by the Supreme Court's flag burning decisions have once more demonstrated the depth of the nation's commitment to freedom of speech. Although the Court's determination to treat flag burning as an act of political expression, and thus to protect it from state interference, provoked a strong, hostile response from both the President and members of Congress, leading some to call for a constitutional amendment, the campaign to reverse the Court on this issue quickly faded. There was a sense in the body politic that the First Amendment is not simply a technical legal rule, to be amended whenever it produces inconvenient results, but rather an organizing principle of society, central to our self-understanding as a nation and foundational to a vast network of highly cherished social practices and institutions. It can be amended only at the risk of changing the very nature of society. The principle of freedom that the First Amendment embodies is derived from the democratic nature of our society and reflects the belief that robust public debate is an essential precondition for collective self-determination.

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