Earlier this year, Germany’s Parliament passed an amendment to outlaw the burning of foreign flags, including the flag of the European Union. The vote was in response to an anti-Israel rally held on the streets of Berlin in which protesters burned Israeli flags. The penalty is a maximum of three years in prison. Burning the German flag is already punishable by a maximum of five years in prison.
In some countries — such as China and Portugal — the burning or desecration of the national flag is a criminal offense. In other countries — such as Canada and Belgium — it is not. Although the burning of the American flag is not illegal in the United States, every few years Republicans and conservatives (and even some Democrats until recently) attempt to make it so. And especially this year, which has seen more flag burnings than previous years. In fact, on the Fourth of July, protesters burned American flags near the Trump International Hotel in New York City as activists gathered nearby for a march and rally.
Donald Trump
After Donald Trump was elected president of the United States in November 2016, there were protests on some college campuses in which American flags were burned. Trump’s initial response was his usual one: take to Twitter. Displaying a profound ignorance of the battles over flag burning that took place during the 1980s, on November 29, he tweeted, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” In response to the president-elect’s tweet, many reminded him on Twitter that the U.S. Supreme Court had twice ruled that flag burning was protected under the First Amendment. During a speech in Cincinnati the following month at the start of his “Thank You Tour,” Trump reiterated that there should be consequences for burning an American flag. He even asked the crowd of conservative supporters, “Do you agree with my stance that if people burn the American flag there should be consequences?” The crowd erupted in applause and chants of “USA! USA!” This past June, at a campaign rally in Tulsa Trump drew huge applause from the crowd when he said that people who burn the American flag should spend a year in jail. Said Trump in front of a crowd that included Oklahoma Republican senators James Lankford and Jim Inhofe,
Two days ago leftist radicals in Portland, Oregon, ripped down a statue of George Washington and wrapped it in an American flag and set the American flag on fire. Democrat. All Democrat. Everything I tell you is Democrat. And you know we ought to do something. Mr. Senators — we have two great senators — we ought to come up with legislation that if you burn the American flag you go to jail for one year. One year.
After some protesters burned American flags in response to the death of George Floyd at the hands of a Minneapolis police officer in May, Trump reiterated in a call with governors that he would support laws criminalizing flag burning.
What is strange about the president’s stance is that before he was elected in 2016, he appeared on the David Letterman show and told the host that he was “one hundred percent right” when Letterman said that flag burning should be allowed because it represented freedom of expression.
President Trump is not alone.
Well-known black conservative activist Candace Owens, who invokes the Constitution on a regular basis to defend her conservative positions and attack her liberal political opponents, announced on Twitter in 2019 that if she were the president of the United States, “the punishment for burning the US flag would be the renunciation [sic] of citizenship. No jail time, no fine — simply one year to liquidate your assets and get the hell out of our country.” After a number of people brought up the potential conflict of such a law with the First Amendment, she responded, “1A [the 1st Amendment] has limitations. You can’t yell fire in a movie theater without consequence. You cannot yell racial epithets at someone without consequence. And if I were President, you sure as hell wouldn’t burn a flag without consequence.”
Last year, to commemorate Flag Day, Sen. Steve Daines (R-Mont.), with Sen. Kevin Cramer (R-N.D.), introduced a constitutional amendment to ban the desecration of the American flag. “The American Flag is a symbol of freedom — and it should always be protected,” said Senator Daines. “A flag worth dying for is a flag worth protecting,” said Senator Cramer. Trump responded favorably to the senators’ proposal on Twitter: “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!” It turns out that Senator Daines introduced similar amendments in 2017 and 2018.
But why a constitutional amendment? Can’t Congress or state legislatures just pass a law?
Flag burning
During the 1960s, protests against the Vietnam War were sometimes accompanied by the burning, or desecration in some other way, of the American flag. In response, Congress passed, and Lyndon Johnson signed into law on July 5, the Flag Protection Act of 1968. It nationalized a 1947 law that prohibited the desecration of the American flag in the District of Columbia by specifying that “whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year.” Although court challenges persisted throughout the years, federal courts continued to uphold the constitutionality of the statute, and the Supreme Court declined to take any flag-desecration cases.
That all changed in 1989. In 1984, during the Republican National Convention in Texas, Gregory Johnson, in front of the Dallas City Hall, burned an American flag in protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration, and was sentenced to one year in jail and fined $2,000. The conviction was initially upheld by the Court of Appeals for the Fifth District of Texas at Dallas, but the Texas Court of Criminal Appeals reversed the conviction, and the case was appealed to the U.S. Supreme Court. In the case of Texas v. Johnson (1989), the Supreme Court, by a 5-4 vote, ruled that the Texas law was unconstitutional because flag burning was protected expression under the First Amendment. According to Oyez, the repository of all things related to the Supreme Court,
The Court found that Johnson’s actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that “[i]f 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.”
In response to Texas v. Johnson, the U.S. House of Representatives, on September 12, 1989, passed the Flag Protection Act of 1989 (H.R.2978) by a bipartisan vote of 380-38. The bill was amended and passed in the Senate by a similar vote of 91-9 on October 5. The final version of the bill was then passed in the House on October 12 by another bipartisan vote of 371-43. Although the legislation was sent to the president for his signature on October 16, it automatically became law (PL 101-131) on October 28 after he did nothing with it. The Flag Protection Act was enacted “to protect the physical integrity of the flag.” It amended section 700 of Title 18, U.S. Code, to make it a federal crime to desecrate an American flag or any likeness of an American flag:
(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.
(b) As used in this section, the term “flag of the United States” means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.
This law was challenged the following year in the Supreme Court case of United States v. Eichman (1990), which was argued along with United States v. Haggerty (1990).
After the Flag Protection Act took effect, Shawn Eichman and three companions burned American flags on the steps of the U.S. Capitol to express their opposition to “compulsory patriotism.” On the other side of the country, Mark Haggerty and three companions burned American flags at a Seattle post office to express their opposition to “forced patriotism.” The
protesters were all charged with violating the Flag Protection Act. However, in both cases, federal district court judges in Seattle and Washington, D.C., dismissed the charges, citing Texas v. Johnson. The decisions were appealed to the Supreme Court, accepted, and the cases consolidated. They were argued before the Court forthrightly because the Flag Protection Act contained a clause mandating “expedited review” if challenged. In United States v. Eichman, the Supreme Court, by another a 5-4 vote of the same justices, ruled that it would be inconsistent with the First Amendment for the government to prosecute a person for desecrating the American flag. According to the Court’s opinion,
The Government concedes, as it must, that appellees’ flag-burning constituted expressive conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag-burning as a mode of expression does not enjoy the First Amendment’s full protection. It is true that this Act, unlike the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct. Nevertheless, it is clear that the Government’s asserted interest in protecting the “physical integrity” of a privately owned flag in order to preserve the flag’s status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression.
It should be noted that conservative Supreme Court justice Antonin Scalia voted with the majority in both cases.
The only way, then, to circumvent the Supreme Court, was to amend the Constitution. And that is what Congress has tried, and failed, to do on numerous occasions since then. In the summer of 1990, both Houses of Congress considered and failed to pass an amendment to the Constitution that would empower Congress to enact legislation to prohibit the physical desecration of the flag of the United States. The House passed a proposed constitutional amendment to that end in 1995, 1997, 1999, 2001, 2003, and 2005. The Senate considered, but failed to pass, such an amendment in 1995, 2000, and 2006. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Judiciary Committee, “argued that burning the American flag was precisely the kind of speech the First Amendment is meant to protect.”
The First Amendment
The Constitution was ratified in 1788. In Article I, Section 8, Congress is granted certain limited powers. Abridging the freedom of speech is not one of them. Nevertheless, the Bill of Rights — of which the capstone is the First Amendment — was added to the Constitution at the insistence of the Anti-Federalists. The final version of these amendments, originally twelve, was approved by Congress on September 25, 1789, and sent to the states for ratification three days later. Amendments three through twelve became the ten amendments of the Bill of Rights when they were ratified by the requisite number of states on December 15, 1791.
The First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Notice that it doesn’t say that Congress grants the free exercise of religion, the freedom of speech, the freedom of the press, the freedom to assemble, or the freedom to petition the government; rather, it prohibits Congress from interfering with them. The First Amendment, like the entire Bill of Rights, does not grant Americans any rights. It prohibits the government from infringing the natural rights that Americans already have. The First Amendment merely reinforces the idea that the federal government lacks the authority under the Constitution to abridge Americans’ existing freedom to exercise their religion, speak, publish, assemble, or petition.
Some of the Founding Fathers actually argued against the inclusion of a bill of rights in the Constitution. Writing in Federalist No. 84, Alexander Hamilton affirmed
that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
Nevertheless, although the Bill of Rights’ being added to the Constitution is generally looked upon as a good thing, most Americans have been taught to believe that (1) rights are granted by government in the Constitution and (2) if a right isn’t listed, then it doesn’t exist unless the government says so.
Would Americans lose their rights if the Bill of Rights were repealed? Would Americans lose their First Amendment rights of the free exercise of religion, the freedom of speech, the freedom of the press, the freedom to assemble, and the freedom to petition the government? Not at all. Without the First Amendment, Congress could still make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Why? Because the Constitution grants only certain limited powers to the central government. And no power was granted to abridge any of what are commonly referred to as First Amendment freedoms. The First Amendment merely reinforces that idea.
In order to not “protect” certain forms of speech, the federal government has over the years come up with certain speech tests — bad tendency, clear and present danger, fighting words, imminent lawless action, balancing, preferred position — to limit speech. And in order to “protect” certain activities that are not speech, the federal government has defined them as forms of “speech” so they can be “protected” by the First Amendment. For example: flag burning, which has been held to be “symbolic speech” and “expressive conduct” that is subject to First Amendment “protection.”
Burning a flag may be symbolic and it may express something, but burning a flag has nothing to do with speech. The cases of Texas v. Johnson and United States v. Eichman should never have gone to the Supreme Court — or any court. They had nothing to do with freedom of speech and everything to do with property rights. As economist and political theorist Murray Rothbard explained it,
Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.
The questions therefore to be asked whenever someone burns an American flag are (1) Whose flag? and (2) Whose property? No one has the right to burn a flag that he does not own or have permission from the flag owner to burn. And no one has the right to burn a flag on the property of someone else without permission from the property owner. It all comes down to property, not the nature of the action. As the Supreme Court justice Hugo Black put it,
We have a system of property, which means that a man does not have the right to do anything he wants anywhere he wants to do it. For instance, I would feel a little badly if someone were to try to come into my house and tell me that he had a constitutional right to come in there because he wanted to make a speech against the Supreme Court. I realize the freedom of people to make a speech against the Supreme Court, but I do not want him to make it in my house.
“That is a wonderful aphorism about shouting ‘fire’ in a crowded theater,” Black said, but if a person creates a disorder in a theater, they would get him “not because of what he shouted but because he shouted.”
Conclusion
Actor George Takei of Star Trek fame, who was one of tens of thousands of Japanese-Americans whom Franklin Roosevelt interned in detention camps for the “crime” of being of Japanese ancestry, notably said, “I pledged allegiance to the flag every morning inside an internment camp. I would never burn one, but I’d die to protect the right to do so.” The recent calls to criminalize the desecration of the American flag by Republican politicians, pundits, and the GOP faithful who cheer them on show just how totalitarian modern conservatism is.
This article was originally published in the October 2020 edition of Future of Freedom.