Strengthening Constitutional Self-Government

No Left Turns

Flag burning

Mark Steyn opposes a law against burning the flag, as do I, but his op-ed on the point is much more effective than anything I could have written. Read it.

My grandfather got 10 years at hard labor for having a small American flag in his house. The first thing he wanted to see when they let hime out was that flag. He thought the imprisonment was worth it. When I was monitoring the first free elections in Bulgaria soon after the fall of Communism in a dusty village near the Black Sea I noticed that there were many small American flags here and there, especially on cars. I walked up to an old woman and asked her why there were all these American flags about. She looked at me as if I were an idiot and said, "Freedom. It represents freedom." Enough said. Those who burn Old Glory make a political statement. I like to know where people stand.

Discussions - 15 Comments

I am inclined to think that flag burning should not be restricted because I think it is a legitimate form of political speech. Just as I believe that the McCain-Feingold Finance Reform Bill intrudes on a form of political speech. What strikes me is that many Republicans (as well as Democrats on the other side of the coin) seem to think there is some distinction between these two forms. Is there (not in sentiment, of course, but in the manner of speech)? It has also been argued that flag burning is not speech because it is irrational; but I do not think one must be correct in order to be rational. I would like to see some thoughts as well.

Mr. Bills:

Your method of constitutional interpretation confuses me. When discussing Kelo you stated that "purpose" was not the same as "use," use being the word found in the 5th amendment, and refused to accept precedent. When analyzing free speech issues you think burning a certain piece of cloth is "speech" and not an "expression." Of course, only speech is protected in the 1st amendment if we stick with the text, not expression, but the Court has expanded protected speech to include various forms of expression. Why do you accept this precedent, but not e.d. precedent? Do you favor certain rights over others and use whichever argument favors that right, or what? Please elucidate.

Julie - so a flag-burning amendment would make "the GOP look bad," eh?? Interesting.

Watching the Right’s mental gymnastics regarding free speech is always a hoot. So, a lobbyist approaching a congressperson with a briefcase full of cash as an "argument" to persuade said congressperson to vote the right way on the issue of interest to the lobbyist is "speech," not bribery, but someone who wishes to deface, damage, or destroy a (typically cloth) symbol of our country, in order to express their extreme displeasure with (typically) the current administration or a particular policy or action of the government, this is not speech. Ok, presumably, burning isn’t the only way to disrespect "Old Glory." Actually, I distinctly recall reading a booklet when I was in Boy Scouts (believe it or not!) about how to treat the U.S. flag. The booklet was from the American Legion or maybe even a government agency - anyway, it was the "official" book on flag display and handling. It talked about things like not using the flag as a decoration on clothing and such - funny how the good capitalist flag marketers persuaded the patriots to loosen up their reverence towards the flag on THAT one! I won’t even begin to cite the myriad examples on which the flag is just another decoration (ok, I will, underwear, socks, bumper stickers, pens, tissue boxes, soda cans, etc.) And the official flag booklet definitely disallowed such things as signing your autograph on a flag. Funny, I don’t recall the flag fetishists getting in a huff when President Bush (see the link, scroll down a bit for relevant photo) did that very thing. You’d think he would know the rules! Well, just to be clear, I don’t think signing a flag should be banned or outlawed, even if I find THAT to be far more offensive than someone engaging in the likely futile and counterproductive act of burning a flag. Same with flag burnings - it shouldn’t be banned in any way (except maybe in a movie theater!).

Julie, you also said "I can see why it is painful to soldiers to see such outrages in the very country they risked their lives to defend." Don’t assume that all soldiers are monolithic block of uniformly right-wing Republicans. I’m sure that many soldiers do not necessarily consider it an outrage, and some are likely WISHING that their actions in Iraq had something remotely to do with defending the U.S. (remember, no WMDs, no major terrorism or 9/11 links!), and the rights of its citizens, including the right of a citizen to show their extreme displeasure with the current state of things by blazing a flag.

Finally, I would be interested to see a list of Americans’ "sacred rights." Are these the rights that Jesus of Nazareth has bestowed upon those of us with American citizenship?

Mr. Sparks: I think its funny you don’t see the obvious implications of what speech must necessarily require. "Freedom of Expression" is obviously a broad term that I think could lead to bad Court decisions (not only according to my whims). However burning a flag, especially in a politically conscious society as the United States, has the same intent and purspose as does giving a political speech (Is it possible to make the same argument concerning purpose and use?). Of course, however, Mrs. Ponzi has a valid point, for it is easy to imagine where one may enter, oh, I don’t know, say some GOP sponsored event and burn the flag not for the purpose of political speech, but merely to incitea a mob. So perhaps more should be said about legislation without Court involvement; it is more flexible. It will take some more time to figure out. Chris: Political contributions are bribery. Really? So while giving a suitcase full of cash to a Senator on the condition that he fulfill your desires is bribery, is contributing to the campaign (See Steve Forbes on Jack Kemp in ’96 election) of the candidate you think most represents your interests. I know anything that involves self-interest is dirty and selfish (unless, of course, you’ve read your Tocqueville), but, if we can not use our property to speak our purpose, what then of democracy?

Chris: Where’s your evidence that people who burn flags are "typically" intending only to complain about some particular action or policy of the administration of the day, and not attacking the American political community itself? There are far clearer and better-focused ways of denouncing (even very angrily) particular policies. Taking aim at the flag seems to be meant to go beyond particular complaints in order to express contempt for the nation itself.

Also, Julie never assumed that soldiers are monolithically Republican. Instead, she seems to assume that soldiers of any or no political party will find flag-burning painful to see. What makes you think that only Republicans are outraged by flag burning?

My whole point is that this is silly. There is no "right" to burn a flag. Publicly burning a flag is not speech it is action and--what is more--it is violent action. Although laws against flag burning may not be wise, it is something about which reasonable people can disagree. The majority, in this situation, should rule and that majority could fluctuate. I would probably come down against legislation outlawing the burning if asked today. But there could be situations (political and practical) that would persuade me otherwise. Anything other view on this point strikes me as pointlessly and stubbornly absolutist.

As for the question of political contributions--that is another matter. While giving someone money is not speech in the traditional sense, neither is it entirely an action. It is purchasing speech or endorsing speech with one’s own property. One ought to be able to dispose of one’s own property in whatever way one sees fit--provided one is not purchasing contraband. I fail to see how political campaign contributions are any different from hiring someone to speak or write for you because you think they can say something more effectively than you can.

Finally, for more information about what rights are sacred, Chris L. might consult the Declaration of Independence (the 230th anniversary of which we’ll be celebrating this Monday) where the laws of nature and nature’s God are shown to endow all men--created equal--with the rights to life, liberty and the pursuit of happiness. These rights we held so sacred that the Founders dedicated their "lives, their fortunes, and their Sacred Honor" to defending them. We ought to do the same--even if the Supreme Court is bent on distorting them.

"What makes you think that only Republicans are outraged by flag burning?"

Because dude, that’s just the kind of thing that only a Republican COULD get outraged about.

Mr. Bills:

Your last comment did not clarify why you think protection of free speech implies protection of certain forms of expression, or the method you used to decide that flag burning is speech. I do not think it is obvious or free speech/free expression issues would not be so hotly litigated.

I think if we think of expression by using Aristotle’s method of categorization we can see why protection of speech does not imply protection of flag burning.

The genus is expression. We will define expression as one person’s concious or unconcious acts indicating to others his emotions or ideas. There are 5 species of expression, corresponding to our five senses. We need only explore sound and sight species of expression.

There can be unconcious sound, such as moaning, or nervous laughter. There can be concious inarticulate sounds, such as laughter, tone, certain forms of singing, etc. People may manipulate physical objects to produce music (sound following a rational system of rhythm and tone), or people may use their voice to produce music (same definition of music as before). Or people may use their voice to speak, which can be musical but is often not. People may also express through visual means (next species). People may unconciously use body language, or they may conciously use body language. People may wear certain uniforms or clothes to express themselves, people may write, or people may manipulate physical objects (art).

One can see that protecting speech, a subspecies of the species sound, does not imply that art is protected. If we follow my genus and species categorization, flag burning would be art. If the amendment said that expression was protected then all species of expression would be protected, but it does not. Furthermore, the amendment protects another species of expression, the press (writing). This portion of the amendment would be unnecessary if protection of speech implied protection of all forms of expression.

I suggest that you can offer no justification for incorporating burning flags as a form of speech, while not incorporating "purpose" as a form of "use." I do not believe the Court ruled that flag burning was protected speech until the late 1980s, another factor that does not favor your argument. If your proposition were so obvious it should not have taken such a long time to become the law.

"I would probably come down against legislation outlawing the burning if asked today. But there could be situations (political and practical) that would persuade me otherwise. Anything other view on this point strikes me as pointlessly and stubbornly absolutist"

Julie, I appreciate your efforts to see shades of gray in this issue, but it doesn’t seem at all practical to have laws that would change from day to day. What are the "political and practical" situations that might change your mind? Whether it was a Democrat or a Republican in the White House? I think the issue is straightforward enough - should people be allowed to stand in public places, where there is no risk of the fire spreading, and taking a lighter and burning a U.S. flag that belongs to them?

To fiddle with your distinction between flag burning and harmless lil’ campaign contributions, "While burning a flag is not speech in the traditional sense, neither is it entirely an action. It is engaging in political protest with one’s own property. One ought to be able to dispose of one’s own property in whatever way one sees fit--provided one is not endangering others with a genuine fire hazard."

"Purchasing speech"??? Hardly sounds like a noble ideal from the Founding Fathers; more like a weaselly rationalization for bribery from a lobbying firm or a PR company.


Did you know that while he was serving as the first US Secretary of State, Thomas Jefferson spent public funds employing a nearly full-time professional propagandist to push TJ’s own favored political views? Just one example of how the Founders could become involved in what might be called "purchasing speech."

So, Philip Freneau was accused by Hamilton "of being the pensioned tool of Jefferson." The virtual encyclopedia article you linked to hardly establishes his guilt as an established fact. Perhaps you just want to trounce on this guy as an example because he was bashing the Federalists? In any event, I’m not playing the silly partisan game here. I don’t feel that any political leaders, the Founding Fathers included, should be immune to criticism. If indeed Jefferson employed this guy as some equivalent of Gannon/Guckert or Armstrong Williams or White-House-manipulated video "news" segments, etc., then I don’t think it was the right thing for him or Freneau to do. Whether Jefferson was guilty of this or not, it’s still of a different (not better or worse, just different) nature than wealthy individuals or corporations buying favorable legislation from congressmen. That’s not expressing one’s views, it’s just bribery. But I’m sure we see things differently here.

In the second line of my comments above, I should have said "...hardly describes Jefferson’s, or Freneau’s, guilt as an established fact."

I honestly don’t understand Chris L’s obsession with flag burning. If it is a way to express an opinion (which I do not here concede) it is, at the very least, a very juvenile way to express opinion. The purpose of the First Amendment was to elevate political speech--not shove it into the gutter or into the nursery. If burning a flag is the best argument a person can conjure, I’m not sure said person is really up to the task of citizenship that our Constitution and laws protect. Still, it’s no crime to be stupid and as long as any particular act of stupidity is tolerable, it should be tolerated. Even so, it remains that stupid people are dangerous. Dangers must be watched lest they become intolerable. As for laws changing from day to day--that happens all the time. Obviously, some things make sense at a particular time and place that don’t make sense at another time or place. Draft laws are one example. There are many others. I will not give a hypothetical example of a time or place for advocating laws banning flag burning precisely because it would be hypothetical.

I will say this: the demand on the other side for absolute consistency in these and many other matters is striking. It shows no regard for prudence or statesmanship. It shows the kind of inflexible, unthinking, and reactionary impulses that drive them. Like their flag burning itself, it tells us much more about themselves than it tells us about their opinions.

Julie, I’m hardly obsessed with flag burning. You fuss that flag-burning is a "juvenile" method of expression. I would consider accusing an opponent in an argument to be "obsessed" with the issue at hand to be juvenile. Scroll up to the top of this page - there’s a post by Mr. Schramm entitled "Flag Burning." Thus, I’ve written my thoughts about that topic.

I DID try to keep it interesting by comparing typical conservative attitudes to flag burning vs. campaign contributions, and I did respond to PJC’s sideshow about Philip Freneau, but alas, here we are on flag burning again. You consider flag burners to be stupid and, therefore, potentially dangerous. This meshes well with Peter’s initial logical contortions that (because the Bulgarian woman said so) the U.S. flag represents - beyond debate! - freedom, and that therefore a flag burner is, interestingly, in Peter’s words, "making a political statement." I guess the only statement one could be making by burning the flag is that they hate or want to destroy freedom. Hey, that sounds familiar! I think the next hoop we jump to is, "Who hates freedom and wants to destroy it?" Answer: "The terrorists!" Yes, I see, flag burners are juvenile, stupid, DANGEROUS people who should be watched closely because they hate freedom and are likely terrorists (cue the video of the planes hitting the WTC on 9/11, exhibit no hint of shame). While I disagree with Peter’s simplistic assessment of what a flag-burner’s "political statement" necessarily is or must be, I do agree that it is, or can be, a political statement. Fortunately, the Bill of Rights says "Congress shall make no law... abridging the freedom of speech," and there is no "unless Julie Ponzi considers it juvenile or stupid" exception.

You value "regard for prudence or statesmanship." My, how you must have been distressed by Bush’s flipping the bird to the camera when he was governor, and Cheney’s use of gutter talk at the Capitol almost exactly a year ago today.

I’ve never burned a flag, and I’ve never seriously considered doing it. But I think that one should have the right to do so as a political statement, even though I completely disagree with Mr. Schramm’s characterization of what that statement would necessarily be. I am also certainly not a reactionary, at least by the standard political definition of the term. That would probably best describe most of the NLT contributors and commenters. If you mean "reactionary" in a looser sense pertaining to the verb react, then I can only point out that those of us who strongly disagree with 99.9% of what the current administration is doing are necessarily limited to reacting to what is happening. We are not running the show, and we are not listened to. We have been dismissed as a "focus group" or worse...

I am a true American and I hate flag burners. But I am American enough that if you tell me I can’t burn a flag then I am going to have to do it because I am free and don’t like to be told I can’t do something... sort of like the Chinese not allowing protest. I promise you that I won’t burn any American made flags since they are made by communists in China these days. I am doing America a favor burning a communist made "American?" flag. It should be illegal to own an American flag made anywhere else but America. That would be a true American law to pass.

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