Free Speech and Flag Burning

Some pro-Hamas protesters recently burned some American flags at Washington DC's Union Station, right after Israeli PM Benjamin Netanyahu spoke before a joint session of Congress. Flag burning is prime-grade political chum, always certain to raise the ire of many, and this was no exception. In this political silly season, presumptive Presidential nominee and current Vice President Kamala Harris issued a statement condemning the flag burning, and the Republican side scolded her for taking an apparently unacceptable amount of time in making that condemnation.

Partisan ping-pong aside, the matter of flag burning isn't new, and so I will seize on the opportunity to present a libertarian view on the matter.

I flash back to 2019, when I discussed a proposal to ban flag burning, published at my original The Roots of Liberty website.

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Go Ahead, Burn That Flag - June 18, 2019

It’s been often commented, in this blog and elsewhere, that Trump is ideologically untethered, that he shoots from the hip far too often, given the importance and power of his position, and that it’s sometimes hard to figure out what he’s thinking and wants to do.

There are times, however, when it’s as easy as figuring out that kids prefer ice cream over broccoli. Matters to do with the American flag is one of those. This past Friday, which happened to be Flag Day, witnessed the (re)introduction of a measure to prohibit flag burning, via Constitutional Amendment, by Montana Senator Steve Daines (R). Trump promptly cheered the proposal, calling it a “no-brainer.” And, of course, right on cue, some Trumpists in the media shouted concurrence.

More thoughtful conservatives figuratively muttered and shook their heads, recognizing that such a proposal runs directly afoul of the First Amendment and the basic tenets of free speech. It makes it harder to criticize the Left for their anti-free-speech ways when such an obvious infringement is being advanced by a member of the Republican party and supported by its titular head.

Obvious infringement? Yes. Without doubt, question, or reservation. Even Daines tacitly admits so, by proffering his prohibition in the form of a Constitutional Amendment.

Burning the flag is constitutionally protected speech. The Supreme Court affirmed thus in Texas v Johnson, relying on earlier decisions that affirmed non-speech acts as forms of speech, and was correct in doing so. For it is in our defense of the free expression of that with which we disagree that we demonstrate our principled defense of liberty itself, and it is in our failure to do so that we show ourselves to be no better than those whom we criticize for attempting to oppress, control, and subjugate us.

Does the Flag deserve an exemption from the First Amendment? No. Flags are inanimate objects, no matter that they are symbols. Symbols matter within the context of human thought, and it is the freedom of human thought that is protected by 1A. Besides, banning flag burning will do nothing to change the minds of those who’d burn the flag. It would only mean that those people would be locked up for offending someone else’s fragile sensibilities.

Don’t like flag burning and flag burners? Guess what? I don’t either. I consider the American Constitution to be the greatest achievement in governance in the entirety of human history, I consider the flag a symbol of that achievement, and while I’m not fanatical about its treatment, I do find deliberate desecrations offensive.

That means I’ll call you an asshole for burning the flag.

Provided, that is, that it’s your flag. Burn someone else’s flag, you’re destroying another’s property, and I’ll happily advocate that you be dealt with accordingly. But, if you paid for that flag, do with it as you wish. Just know that you’re not protected from criticism if you do something that others find wrong or offensive. I won’t violate your rights or liberty, but just as none of us has a right not to be offended (forget that the Left insists that such a spurious right exists), none of us has a right not to be derided. With vulgarity of whatever sort strikes my fancy in the moment.

Conservatives, this is exactly the sort of issue where you need to walk the walk. If you reject the Left’s belief that personal offense or affront is actionable, you cannot make an exception for this, no matter how affronted you are. If you don’t, you forego any moral ascendancy you may otherwise claim in your defense of rights, liberty, and the Constitution against its aggressors.

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The penultimate paragraph covers the real problem with the recent burnings. As reported, the burners pulled down three flags from flagpoles, meaning they stole and destroyed someone else's property. This is a property crime, and I'd have no problem with prosecuting them for that crime (ditto for the vandalizing of public monuments). It's a reminder that free speech is not a defense for trampling others' rights, that property rights still matter, and that we don’t need, nor should we seek, special treatment for the American Flag.