Is flag burn­ing pro­tected speech?

The First Amend­ment safe­guards hate­ful and love­able ideas alike

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

“If there is any fixed star in our con­sti­tu­tional con­stel­la­tion, it is that no of­fi­cial, high or petty, can pre­scribe what shall be or­tho­dox in pol­i­tics, na­tion­al­ism, re­li­gion or other mat­ters of opin­ion.” — U.S. Supreme Court Jus­tice Robert H. Jack­son

Is flag burn­ing pro­tected speech? This old is­sue re­turned front and cen­ter ear­lier this week af­ter Pres­i­dent-elect Don­ald Trump tweeted that he found it so rep­re­hen­si­ble, it should be crim­i­nal. He even sug­gested a pun­ish­ment — loss of ci­ti­zen­ship or one year in jail. Is the pres­i­dent-elect cor­rect? Can the govern­ment pun­ish acts that ac­com­pany the ex­pres­sion of opin­ions be­cause the govern­ment, or the pub­lic gen­er­ally, hates or fears the opin­ions?

Here is the back­story.

Last week­end, in a series of con­tin­ued emo­tional re­sponses to the elec­tion of Don­ald Trump as pres­i­dent of the United States, and prod­ded by the death of Fidel Castro — the long­time, bru­tal, pro­foundly anti-Amer­i­can dic­ta­tor of Cuba — stu­dents on a few Amer­i­can col­lege cam­puses pub­licly burned Amer­i­can flags. These acts re­gen­er­ated the gen­er­a­tion-old de­bate about the law­ful­ness of this prac­tice, with the pres­i­dent-elect de­cid­edly on the side of those who con­demn it.

For the sake of this anal­y­sis, like the U.S. Supreme Court, which has ad­dressed this twice in the past 27 years, I am ad­dress­ing whether you can burn your own Amer­i­can flag. The short an­swer is: Yes. You can burn your flag and I can burn mine, so long as pub­lic safety is not im­paired by the fires. But you can­not burn my flag against my will, nor can you burn a flag owned by the govern­ment.

Be­fore the Supreme Court ruled that burn­ing your own flag in pub­lic is law­ful, fed­eral law and nu­mer­ous state laws had made it crim­i­nal to do so. In an­a­lyz­ing those laws be­fore it de­clared them to be un­con­sti­tu­tional, the court looked at the orig­i­nal pub­lic un­der­stand­ing of those laws and con­cluded that they were in­tended not as fire safety reg­u­la­tions — the same statutes per­mit­ted other pub­lic fires — but rather as pro­phy­lac­tics in­tended to co­erce rev­er­ence for the Amer­i­can flag by crim­i­nal­iz­ing the burn­ing of pri­vately owned pieces of cloth that were rec­og­niz­able as Amer­i­can flags.

That is where the for­mer statutes ran into trou­ble. Had they banned all pub­lic fires in given lo­ca­tions, for pub­lic safety sake, they prob­a­bly would have with­stood a con­sti­tu­tional chal­lenge. But since these statutes were in­tended to sup­press the ideas man­i­fested by the pub­lic flag burn­ing, by mak­ing the pub­lic ex­pres­sion of those ideas crim­i­nal, the statutes ran afoul of the First Amend­ment.

The First Amend­ment, which pro­hibits Congress from en­act­ing laws in­fring­ing upon the free­dom of speech, has con­sis­tently been in­ter­preted in the mod­ern era so as to in­su­late the pub­lic man­i­fes­ta­tion of po­lit­i­cal ideas from any govern­ment in­ter­fer­ence, whether the man­i­fes­ta­tion is by word or deed or both. This pro­tec­tion ap­plies even to ideas that are hate­ful, offensive, un­ortho­dox and out­right un-Amer­i­can. Not a few judges and con­sti­tu­tional schol­ars have ar­gued that the First Amend­ment was writ­ten for the very pur­pose of pro­tect­ing the ex­pres­sion of hate­ful ideas, as love­able or pop­u­lar ideas need no pro­tec­tion.

The amend­ment was also writ­ten for two ad­di­tional pur­poses. One was, as Jus­tice Jack­son wrote as quoted above, to keep the govern­ment out of the busi­ness of pass­ing judg­ment on ideas and de­cid­ing what we may read, speak about or oth­er­wise ex­press in pub­lic. The corol­lary to this is that in­di­vid­u­als should de­cide for them­selves what ideas to em­brace or re­ject, free from govern­ment in­ter­fer­ence.

In the Colo­nial era, the Found­ing Fathers had en­dured a Bri­tish sys­tem of law en­force­ment that pun­ished ideas that the king thought dan­ger­ous. As much as we re­vere the Dec­la­ra­tion of In­de­pen­dence for its el­e­va­tion of per­sonal lib­erty over gov­ern­men­tal or­tho­doxy, we are free today to re­ject those ideas. The dec­la­ra­tion and its val­ues were surely re­jected by King Ge­orge III, who would have hanged its au­thor, Thomas Jef­fer­son, and its sign­ers had they lost the Amer­i­can Rev­o­lu­tion­ary War. Thank God they won.

Jus­tice Jack­son also warned that a govern­ment strong enough to sup­press ideas that it hates or fears was pow­er­ful enough to sup­press de­bate that in­con­ve­niences it, and that sup­pres­sion would de­stroy the pur­poses of the First Amend­ment. The Jack­so­nian warn­ing is di­rectly re­lated to the amend­ment’s re­main­ing un­der­stood pur­pose — to en­cour­age and pro­tect open, wide, ro­bust de­bate about any as­pect of govern­ment.

All these val­ues were ad­dressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burn­ing con­tro­ver­sies by in­val­i­dat­ing all statutes aimed at sup­press­ing opin­ions.

Even though he per­son­ally con­demned flag burn­ing, the late Jus­tice An­tonin Scalia joined the ma­jor­ity in both cases and ac­tively de­fended both de­ci­sions. At a pub­lic fo­rum spon­sored by Brooklyn Law School in 2015, I asked him how he would re­write the flag burn­ing laws, if he could do so. He jumped at the op­por­tu­nity to say that if he were the king, flag burn­ers would go to jail. Yet, he has­tened to re­mind his au­di­ence that he was not the king, that in Amer­ica we don’t have a king, that there is no po­lit­i­cal or­tho­doxy here, and that the Con­sti­tu­tion, which is the supreme law of the land, leaves free­dom of ex­pres­sion to in­di­vid­ual choices, not govern­ment man­dates.

The Amer­i­can flag is revered be­cause it is a uni­ver­sally rec­og­niz­able sym­bol of the hu­man sac­ri­fice of some for the hu­man free­dom of many. Jus­tice Scalia rec­og­nized that flag burn­ing is deeply offensive to many peo­ple — this writer among them — yet he, like Jus­tice Jack­son be­fore him, knew that banning it di­lutes the very free­doms that make the flag worth rever­ing.

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