Two Republican U.S. senators are on a mission to put a stop to the burning of the American flag by amending the Constitution to outlaw the practice. On June 15, President Donald Trump tweeted his endorsement of the effort by Sens. Steve Daines (R-MT) and Kevin Cramer (R-ND). Any fair-minded person would acknowledge that there are reasonable and rational arguments both for and against such an idea.
The Supreme Court and the Flag
Is the burning of a flag – any flag – an expression of personal opinion, the rejection of an idea, or an act of hate or even of violence? Should this be a states’ rights matter? Does the American flag deserve special protection, or should the burning of any flag be treated the same way, whether allowed or criminalized?
The Supreme Court holds that burning the American flag is an act protected by the First Amendment. The landmark ruling is 1989’s Texas v. Johnson case, when the court ruled 5-4 in favor of Gregory Lee Johnson who was convicted of breaking a Texas law prohibiting desecration of the flag.
The majority decision, written by Justice William Brennan, described Johnson’s act as one of “political expression” and ruled the man’s criminal conviction unwarranted because “Johnson’s conduct did not threaten to disturb the peace.”
If an individual burns the rainbow flag representing the LGBT community, it is almost universally considered a “hate crime” rather than a mere expression of free speech in the popular culture. Is there really a difference? From a strictly legal perspective, no. Burning a flag is burning a flag, so why is it that one flag can be desecrated or destroyed, but another cannot without causing public uproar? Again, is the act of setting fire to a flag one of hate or prejudice, or is it an expression of one’s personal world-view?
It seems that flag-burning is judged by the level of outrage it provokes, and that is a dangerous basis for writing laws. Mob rule results from such practices as imposing laws upon the nation in reaction to public disapproval or the wailing of certain groups.
A States’ Rights Issue?
In 1968, in response to flag burning at Vietnam protests, Congress passed the Federal Flag Desecration Law, which made it illegal to deliberately deface, mutilate, burn, or trample on “any flag of the United States.” Almost every state has laws that prohibit the practice, and so the Supreme Court’s 1989 decision flew in the face of all these laws. Indeed, Chief Justice William Rehnquist, who dissented from the Johnson opinion, wrote: “I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
Those individual rights protected by the Constitution should be held more sacred than any federal or state law because, if they are not, then the Bill of Rights has no meaning. It appears the highest court in the land was correct to rule that, regardless of laws already on the books, Johnson’s conviction was unconstitutional.
After the Johnson opinion, Congress passed the Flag Protection Act of 1989, but the Supreme Court ruled that act unconstitutional in a 1990 decision on another flag-desecration case. Once again, Justice Brennan wrote an opinion dismissing the legality of laws that prohibit the burning of the American flag: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
It is extremely hard to argue with Brennan’s position – especially for anyone who professes unconditional respect for the Constitution. This observation applies not only to the burning of the American flag but also to every attempt – at the federal or state level – to pass laws that defer to notions of “political correctness” or “social justice.”
Could flag-burning be punished within the scope of local ordinances prohibiting the setting of fires in public places? There are, after all, very few counties and cities in the United States that do not punish people for lighting fires in any locations that do not specifically allow it. They could, so long as they went after everyone who lit something on fire – not just the flag haters. Viewpoint discrimination is forbidden by our First Amendment Jurisprudence.
Legality v. Decency
It appears that some tough love is in order, both for conservatives and progressives: It is neither just nor constitutional to infringe upon individual rights because one specific group of people – or even the overwhelming majority, for that matter – finds something distasteful or offensive. As important as states’ rights are, the republic – as an entity – is bound together by the U.S. Constitution, and it is not within the authority of state governments to pass or enforce laws that infringe upon constitutionally protected rights.
Do we make an exception for certain flags, such as the American flag, the rainbow flag, the Gadsden flag? How about the POW-MIA flag (not that this author is aware of any recorded examples of the last being desecrated)? How about the flag of another country?
Laws are not always necessary because the unspoken rules of civil society reject certain types of behavior: Why should there be a law against burning the rainbow flag or, say, the POW-MIA flag? What decent human being would even think of destroying such a flag? It is a senseless act of rage and bigotry that society itself would punish. The arsonist in question, once identified, would be ostracized and shunned by all decent people – perhaps even forced to live in fear for his or her personal safety.
By the same token, why should there be a law against burning the American flag? On the one hand, there are various internet cliques who argue that such an act is an “act of violence” or perhaps even a hate crime. On the other, we travel down a dark road if we choose to criminalize acts we consider “unpatriotic,” just as we move closer to tyranny when we outlaw certain acts or opinions because we consider them “offensive.”
When such issues arise – invoking equally passionate arguments both for and against – a free society should err on the side of freedom rather than legislation, which is, in so many cases, state-sponsored coercion and behavior modification. As human beings, we should be bigger than that – and more personally responsible for our behavior.
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