[guest post by Dana]
At the Tulsa rally this past weekend, the President of the United States suggested that there should be consequences for anyone who burns the American flag:
“We ought to come up with legislation that if you burn the American flag, you go to jail for one year. One year,” Trump said, claiming that he’s “a big believer in freedom of speech,” but calling flag burning “desecration.”
Trump cited an incident at a protest in Portland as the inspiration for his proposal. “Two days ago, leftist protesters in Portland, Oregon ripped down a statue of George Washington and wrapped in an American flag, and set the American flag on fire,” Trump said to raucous boos from the crowd. “Democrat, all Democrat. Everything I tell you is Democrat,” he added.
As we know, burning the American flag constitutes symbolic speech which is protected by the First Amendment. (Texas v. Johnnson, 1989).
Geoffrey R. Stone and Eugene Volokh lay out the basic concept of symbolic speech here :
“The Supreme Court has interpreted ‘speech’ and ‘press’ broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like,” said Stone and Volokh.
“The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information ‘the people’ should be allowed to hear.”
This is nothing new for Trump. Back in November 2016, President-elect Trump suggested that those who burn the American flag should lose their citizenship:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
Last year, I wrote about two Republican congressmen who introduced a Constitutional amendment to ban the burning of the American flag (which Trump enthusiastically endorsed), saying:
Given that efforts to add an amendment have failed before, and given that each chamber of Congress would have to pass the measure with a two-thirds majority, and three-fourths of the state legislatures would have to vote to approve the amendment for any change to the Constitution to be made, it’s unlikely to go anywhere. But really, is the push for such an amendment a good idea? Clearly some GOP lawmakers think it is. However, consider that this makes the GOP as a whole vulnerable to criticism of being anti-speech, or at the very least, the Party that attacks [and attempts to shut down] speech.
In closing, I’ll leave you with Beldar’s observation about symbolism and the American flag:
A flag, be it the American flag or any other, has no more objective intrinsic value than any other similarly sized piece of cloth. What makes any flag meaningful is the symbolism that people project onto the flag.
There likewise is no objective intrinsic value to burning a flag, no more than any other piece of cloth, the only value in the act being, again, the symbolism that people project onto that act.
Symbols and symbolism are indeed powerful for reasons that aren’t objectively rational. They speak loudly but metaphorically. Allowing government to regulate symbols and symbolism based on its content is as pernicious an idea as allowing government to regulate spoken or printed speech based on its content.
Every argument that a special rule should be made for the U.S. flag because of its special significance is merely a restatement of the observation that it is especially imbued with symbolism. Demonstrations using it, whether reverently or disdainfully, are intended to take advantage of that imbued symbolism to make intensify one’s argument, whether it’s an argument of reverence for the U.S. and its government or an argument that’s disdainful. But there is an asymmetry; ultimately, on close and prolonged observation of the symbolism and that which is behind it, the reverent people are celebrating a symbol that also stands for the Constitution and Bill of Rights, and especially including its guarantees of free speech. And by contrast, the disdainful people — the Bill Ayers with their arguments made in both words and symbolic conduct — are always, always undercut on the merits by the fact that those folks very ability to show disdain for the flag is as protected as my speech celebrating it.