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Is Flag Burning Protected Speech?
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“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” — U.S. Supreme Court Justice Robert H. Jackson

Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment — loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions?

Here is the backstory.

Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro — the long-time, brutal, profoundly anti-American dictator of Cuba — students on a few American college campuses publicly burned American flags. These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.
For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.

Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.

That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment.

ORDER IT NOW

The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as loveable or popular ideas need no protection.

The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference.

In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its author, Thomas Jefferson, and its signers had they lost the American Revolutionary War. Thank God they won.

Justice Jackson also warned that a government strong enough to suppress ideas that it hates or fears was powerful enough to suppress debate that inconveniences it, and that suppression would destroy the purposes of the First Amendment. The Jacksonian warning is directly related to the Amendment’s remaining understood purpose — to encourage and protect open, wide, robust debate about any aspect of government.

All these values were addressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burning controversies by invalidating all statutes aimed at suppressing opinions.

Even though he personally condemned flag burning, the late Justice Antonin Scalia joined the majority in both cases and actively defended both decisions. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don’t have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.

The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people — this writer among them — yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. MEexpert says:

    The first amendment also protects the religious freedom. It clearly states that Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam. Could the good judge explain why the flag burning is protected by first amendment and not the free exercise of religion? As an aside, it is interesting that the society allows extramarital practices but looks down upon a second wife. Double standards?

    Read More
    • Replies: @Eustace Tilley (not)
    Dear Middle East expert:

    Don't worry too much. Despite the current surge in America of Trumpist Islamophobia, it is probably the case that your interest in having multiple wives will eventually be rewarded, as Christianity continues its slow death agony in the West.

    Then you, like the Holy Prophet Mohammed (Allah praise his name!), will be able to indulge your lust without restraint. (I especially like the part where Mohammed catches a glimpse of his daughter-in-law in her lingerie and then forces his son to divorce her so he can grab all the candy for himself).
    , @Jonathan Mason

    Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam.
     
    Ridiculous! Before you know it, they will want to ban self sacrifice which is the keystone of Christianity.

    But don't you think that at the time the Constitution was enacted, the Founders were thinking more in terms of Catholics vs Protestants, and gave no thought to exotic religious practices such as polygamy, handling poisonous snakes, ingesting hallucinogens, sacrificing live animals, burning widows, smoking ganja, refusing blood transfusions, and so on?
    , @patrickreplies
    Great point. Burning anything has absolutely nothing to do with freedom of speech. Try burning a mexican flag, and see what happens.
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  2. Anonymous says: • Disclaimer

    In purely political terms, the SCOTUS flag-burning decisions function like Roe vs. Wade. Both decisions have passionate opponents that the right can pander to without having to do anything about the actual matter. Whatever its judicial aspects, it was only a matter of time before someone got flag burning out of mothballs. Plus ça change, I suppose.

    Read More
  3. Mark Caplan says: • Website

    The American flag is revered because it is a universally recognizable symbol of the human sacrifice blah blah blah….

    No, the American flag now stands for “all men are created equal,” inclusiveness, anti-racism, open borders, mass immigration, Black Lives Matter, the hijabbed and taquiyahed terrorist invasion, Frankfurt School hegemony, Balkanized multiculturalism, pussification, globalism, political correctness, safe spaces, and every other leftist idiocy currently in circulation. Burn it!

    Read More
    • Replies: @John Jeremiah Smith

    No, the American flag now stands for “all men are created equal,” inclusiveness, anti-racism, open borders, mass immigration, Black Lives Matter, the hijabbed and taquiyahed terrorist invasion, Frankfurt School hegemony, Balkanized multiculturalism, pussification, globalism, political correctness, safe spaces
     
    Whoa! Whoa! Whoa! Don't you mean the Mexican flag?
  4. “Is flag burning protected speech?”

    This is such a nothingburger of an issue. A serious nation doesn’t get itself wrapped up in a knot over idiots defacing a mere symbol of it strength and greatness … assuming they are valid assertions.

    Hell, I’d burn one of it gets me out of myriad annual compliance filings that come with being a citizen abroad.

    BTW, burning the Flag is the acceptable way to retire one that is no longer serviceable … are we supposed to prosecute people for that, and how could we distinguish cases at law when we don’t prosecute so-called acceptable Flag burnings?

    Read More
    • Replies: @John Jeremiah Smith

    BTW, burning the Flag is the acceptable way to retire one that is no longer serviceable
     
    Not merely "acceptable", but recommended, as every 50s-era Cub Scout can verify. There were two recommended methods of disposal: burning, and burial.

    After 240 years of flag disposal, the landscape should be dotted with little flag burial plots. They should be taking up parking spaces at public schools and generating letters from parents to do "something" about the flag plot, with implied threat to discontinue PTA attendance.

    I have absolutely no objection to protesting by burning the flag. It's a piece of colored cloth; if you own it, and you want to burn it, have at it. This topic is bullshit of the most pure and serene variety.

    Time to wash the false-piety tear-stains out of the nation's pillows, for gawd's sakes.
  5. Trump is just trolling the SJWs into burning more flags to anger the normies. It was Machiavellian lol.

    You goofballs don’t see that Trump is playing on another, much higher level.

    Read More
    • Replies: @John Jeremiah Smith

    You goofballs don’t see that Trump is playing on another, much higher level.
     
    Not "higher". Just better researched.
  6. Burning the American flag is an affront to football. Not sure what the penalty should be. Ten yards?

    Read More
  7. As long as so-called hate speech is prosecutable by the government, then flag burning should be prosecutable too.

    There’s got to be some limits on the left’s hypocrisy.

    Read More
  8. @MEexpert
    The first amendment also protects the religious freedom. It clearly states that Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam. Could the good judge explain why the flag burning is protected by first amendment and not the free exercise of religion? As an aside, it is interesting that the society allows extramarital practices but looks down upon a second wife. Double standards?

    Dear Middle East expert:

    Don’t worry too much. Despite the current surge in America of Trumpist Islamophobia, it is probably the case that your interest in having multiple wives will eventually be rewarded, as Christianity continues its slow death agony in the West.

    Then you, like the Holy Prophet Mohammed (Allah praise his name!), will be able to indulge your lust without restraint. (I especially like the part where Mohammed catches a glimpse of his daughter-in-law in her lingerie and then forces his son to divorce her so he can grab all the candy for himself).

    Read More
  9. John Jeremiah Smith [AKA "MCPO USN"] says:
    @Mark Caplan

    The American flag is revered because it is a universally recognizable symbol of the human sacrifice blah blah blah....
     
    No, the American flag now stands for "all men are created equal," inclusiveness, anti-racism, open borders, mass immigration, Black Lives Matter, the hijabbed and taquiyahed terrorist invasion, Frankfurt School hegemony, Balkanized multiculturalism, pussification, globalism, political correctness, safe spaces, and every other leftist idiocy currently in circulation. Burn it!

    No, the American flag now stands for “all men are created equal,” inclusiveness, anti-racism, open borders, mass immigration, Black Lives Matter, the hijabbed and taquiyahed terrorist invasion, Frankfurt School hegemony, Balkanized multiculturalism, pussification, globalism, political correctness, safe spaces

    Whoa! Whoa! Whoa! Don’t you mean the Mexican flag?

    Read More
  10. John Jeremiah Smith [AKA "MCPO USN"] says:
    @george strong
    Trump is just trolling the SJWs into burning more flags to anger the normies. It was Machiavellian lol.

    You goofballs don't see that Trump is playing on another, much higher level.

    You goofballs don’t see that Trump is playing on another, much higher level.

    Not “higher”. Just better researched.

    Read More
  11. John Jeremiah Smith [AKA "MCPO USN"] says:
    @The Alarmist

    "Is flag burning protected speech?"
     
    This is such a nothingburger of an issue. A serious nation doesn't get itself wrapped up in a knot over idiots defacing a mere symbol of it strength and greatness ... assuming they are valid assertions.

    Hell, I'd burn one of it gets me out of myriad annual compliance filings that come with being a citizen abroad.

    BTW, burning the Flag is the acceptable way to retire one that is no longer serviceable ... are we supposed to prosecute people for that, and how could we distinguish cases at law when we don't prosecute so-called acceptable Flag burnings?

    BTW, burning the Flag is the acceptable way to retire one that is no longer serviceable

    Not merely “acceptable”, but recommended, as every 50s-era Cub Scout can verify. There were two recommended methods of disposal: burning, and burial.

    After 240 years of flag disposal, the landscape should be dotted with little flag burial plots. They should be taking up parking spaces at public schools and generating letters from parents to do “something” about the flag plot, with implied threat to discontinue PTA attendance.

    I have absolutely no objection to protesting by burning the flag. It’s a piece of colored cloth; if you own it, and you want to burn it, have at it. This topic is bullshit of the most pure and serene variety.

    Time to wash the false-piety tear-stains out of the nation’s pillows, for gawd’s sakes.

    Read More
  12. Svigor says:

    I’ll crib someone else’s argument, from another thread:

    Flag-burning should not be legal, as long as cross-burning is illegal.

    Opposing cross-burning, while tolerating flag-burning, is cowardly, unprincipled, and tolerant of totalitarianism.

    Until cross-burning becomes a protected right, I will support criminalization of flag-burning. I will continue to criticize leftism as totalitarianism. I will continue to call them cowards and totalitarians.

    This is how politics works. When the enemy drops a bomb on your mother, you drop two bombs on his mother. He will eventually get the point, and stop dropping bombs on people’s mothers.

    Read More
  13. “The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. ”

    What an asshole.

    The US has more people banged up in cages by the State than any other country on earth.

    Primarily, of course due to judicial turds like this.

    Read More
  14. Historian says:

    Polygamy affects property rights, income tax, and a lot of other legitimate topics of legislation.

    If Mormon men wish to keep multiple mistresses or girlfriends, they will not be prosecuted for having sex out of wedlock. However, only one of them can get the tax and inheritance advantages of marriage.

    Read More
  15. @MEexpert
    The first amendment also protects the religious freedom. It clearly states that Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam. Could the good judge explain why the flag burning is protected by first amendment and not the free exercise of religion? As an aside, it is interesting that the society allows extramarital practices but looks down upon a second wife. Double standards?

    Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam.

    Ridiculous! Before you know it, they will want to ban self sacrifice which is the keystone of Christianity.

    But don’t you think that at the time the Constitution was enacted, the Founders were thinking more in terms of Catholics vs Protestants, and gave no thought to exotic religious practices such as polygamy, handling poisonous snakes, ingesting hallucinogens, sacrificing live animals, burning widows, smoking ganja, refusing blood transfusions, and so on?

    Read More
  16. @MEexpert
    The first amendment also protects the religious freedom. It clearly states that Congress shall make no laws impeding the free exercise of religion. Yet congress banned polygamy , a practice allowed by the Mormons and Islam. Could the good judge explain why the flag burning is protected by first amendment and not the free exercise of religion? As an aside, it is interesting that the society allows extramarital practices but looks down upon a second wife. Double standards?

    Great point. Burning anything has absolutely nothing to do with freedom of speech. Try burning a mexican flag, and see what happens.

    Read More
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