A strong defense of flag burning appeared in these pages recently from Christopher Scalia. As you’d expect from a patriot, he made his argument while nevertheless disapproving of the incendiaries and their infernal message. But Scalia believes, as many people do, that incinerating Old Glory is a form of protest properly covered by the First Amendment‘s protection of free speech; a deliberately offensive action that patriots and other decent people must accept if America is to remain a free society.
I disagree.
The matter arose because President Donald Trump issued an executive order to the Department of Justice instructing Attorney General Pam Bondi to prosecute flag burners to the full extent of the law. This would include prosecutions for theft and destruction of property, both of which were committed by the defendant in Texas v. Johnson, the case that entrenched a constitutional right to flag burning.
Scalia, whose father, the great originalist Justice Antonin Scalia, was one of the five majority votes for the flag burning case in 1989, mentioned more impressive disagreements. One was the dissent from another originalist, Chief Justice William Rehnquist, and another was the vote of Justice John Paul Stevens, who was normally a reliable vote for the liberal bloc. Thus, the flag burning decision did not pit originalists against “living Constitution” progressives. It was more about how far-reaching the Constitution’s protection was for forms of “expression.”
The argument I find most compelling came from another great originalist justice, Robert Bork, who did not make it to the Supreme Court because he was traduced in 1987 by two demagogues, former Democratic Sens. Joe Biden and Ted Kennedy. His argument was that the two relevant words of the First Amendment, “freedom” and “speech,” must be treated as equally important. That is, the thing protected must not be merely free but also speech.
The amendment does not refer to “expression,” as much though it is casually rendered that way by those who want an expansive, often unlimited, interpretation of the individual right. And, of course, some forms of expression beyond speech were obviously intended by the framers. They clearly would have intended that written words, not only those delivered orally, should be free.
But the core point of protecting speech, surely, is that allowing the free exchange of opinions between citizens means they will not have to resort to other, more violent, nonverbal forms of expression. Free speech is necessary to the peaceful transition of democratically chosen power and citizens’ informed consent to the policies governing them.
Free people must be allowed to form, hold, and voice opinions, influence others with their arguments if they can do so, and throw out their government and replace it if that is what they wish. Another way of putting this is that citizens’ words and opinions must be protected so that they do not, in frustration, express themselves with bullets or bricks.
Not all forms of expression are legal; many are banned. It is illegal to express one’s detestation of a new law by urinating on the doors of Congress. You are not permitted to show your hatred of a recent judicial decision by throwing stones through the windows of the Supreme Court.
To this, it is reasonable to retort that those violent or obscene actions are different because they inflict damage on someone else’s property. Very well, but various laws also make it illegal to express political opinion by running naked through the street with the slogan “Impeach Trump” painted on one’s body. Such a display doesn’t damage anyone else’s property (though it assaults our eyes and good taste), and yet it is a forbidden expression of opinion.
The point is that the First Amendment does not and should not be interpreted to suggest you can make otherwise illegal actions legal merely by couching them as political protest.
Of course, not all nonverbal forms of protest should be banned; by all means, put a Trump impersonator in medieval stockings and pelt him with tomatoes if he agrees to it. But the fact that some forms of expression are proscribed means flag burning could be. Free speech is sufficient to allow all political disagreement to be aired, but that doesn’t mean all forms of expression need to be tolerated.
It’s illegal to light a fire on the sidewalk in the nation’s capital. That should mean it’s illegal to squirt gasoline on Old Glory on the pavement and drop a lighted match on it. It should be irrelevant that the arsonist is thereby expressing passionate political dissatisfaction.
If a political motive made something illegal legal, it would create — indeed, we have already created — the obviously weird arrangement that burning a cardboard box on the street is unlawful but torching the American flag is acceptable. Does it make sense that burning a heap of newspapers is verboten but incinerating the preeminent symbol of the nation is fine and dandy?
No, it doesn’t. It merely fits the perverse logic of modern leftists that it is always and everywhere acceptable to attack American customs, traditions, and sensitivities. The flip side of that perversity is that the mores and practices of all other cultures, the more exotic the better, are to be adulated and protected as somehow more authentic and superior to our own.
A PRUDENT STEP TO PROTECT THE FLAG
Our own values are worthy of protection, and public opinion demands it. One of our values is that the nation’s flag is our principal symbol of unity as a people.
Conservatives who insist that flag burning should be allowed are falling into a well-known radical trap — that the Left makes the rules and the Right then enforces them.
