If you haven’t heard already, President-Elect Donald Trump wants to make flag burning a crime. A federal crime. In case you were born yesterday, this is not a new or radical position to hold. Although flag burning is highly disrespectful and controversial, it is protected by the first amendment. The freedom of speech has been interpreted in many ways since the original amendment was written. I wanted to weigh in on the controversy or as I’d like to characterize it a non-story. Before I get into why I think flag burning shouldn’t be penalized, I want to explain in some depth analysis about how the Supreme Court came down on flag burning. If you don’t know already, I’m a huge nerd and love looking at policies and politics. One of my absolute favorite branches of government is the Judiciary branch.
If someone told me I could be whatever I wanted for the rest of my life, I think a Supreme Court Justice or Constitutional lawyer would be in the top 3, right along side NFL Quarterback and Historian. The fact is I love the constitution and its intricacies and I’ve studied many of the men who wrote it. I think the document is a testament to the human experiment. The constitution is ageless, timeless and perfectly logical. The language is quite simply genius. The beauty of our constitution is that it can interpreted many different ways and that allows the US to have flexibility like no other nation before us. I honestly believe that most people don’t truly understand the constitution. The truth is that what they teach you in elementary school up to highschool is all true. The constitution sets up the rules and rolls of the government. The Bill of Rights is much deeper than just guaranteed rights by nature but it’s how the actual laws of this country are defined.
All of this introduction to say that the first amendment was written to protect many different types of speech. I took a constitution law class in college. One of my hardest and most favorite classes of all time. I really got my affinity for the constitution during the class. However, the class required me to memorize approximately 20 to 30 supreme courts cases on a few different topics. I had to know the facts, the reasoning, the ruling , the dissent and sometimes the precedents. So before we can discuss the case of flag burning, we should probably read over the first amendment.
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.
For this particular case, Texas vs. Johnson, we want to focus on “abridging the freedom of speech”. The freedom of speech is pretty vague phrase which is why flag burning is protected. If you want to read about the whole case, I would recommend doing that here. I won’t be going over the ‘facts’ because it’s not that important other than to say that quite a few states tried to pass laws to make flag burning a crime. Those states, specifically Texas tried to prosecute someone named Gregory Lee Johnson for burning a flag. Now the court decided that the issue with the flag burning was whether or not its protected by symbolic speech. In order to understand the phrase ‘symbolic speech’ in a constitutional meaning, you have to know two other supreme court cases. In other words, the court cited two precedent.
In Stromberg vs. California, this was case where the court decided that California could not ban red flags. It was unconstitutional because it was protected by symbolic speech and due process (a 14th amendment right). It was a landmark case because it gave symbolic speech the protection of due process. Which if you missed that in history class, due process protects the denial of life, liberty or property by the government, outside the sanction of the law. In other words, the government has to have a legitimate reason to pass a law that is vague or unfair. The second precedent which I believe is slightly more relevant and well-known is Tinker vs. the Des Moines Independence Community School. In this case, the court voted 7-2 in favor of kids wearing black armbands to school as symbolic speech. It is the most cited and often best supported argument for symbolic speech. The students were voicing their opposition to the Vietnam war with the black armbands and the court justified this as their right because “students and teachers don’t shed their rights to freedom and expression at the schoolhouse gates.” This is how symbolic speech has been defined in the past. If you read the actual briefs, the judges cite many cases but these two clearly show how symbolic speech is protected especially as pertains to flag burning.
In Texas vs. Johnson, the Supreme Court handed down a ruling of 5-4. The Majority opinion was written by Justice William Brennan. The dissenting opinion written by Justice Stevens. The court ruled that flag burning was in fact protected by symbolic speech. Why? The court decided that the Texas law used viewpoint to try to justify the ban of flag burning. Court said that viewpoint wasn’t justifiable objection alone. However, it did exempt flag burning to get rid of an old flag. They also said that the offensiveness of flag burning is notwithstanding in a law to ban it. Now to me, this might bring up the another constitutional issue of obscenity, however, I’ll leave that for a different post.
The dissenting opinion by Justice Stevens was that flag burning should be ban because of the flags unique symbolization of the unity of America. Justice Steven was suggesting that national unity outweight symbolic speech and free speech. Whether you agree or disagree with either opinion, I think there is a fundamental problem with Justice Stevens argument. I believe from what I’ve heard that Donald Trump pretty much has the same line of reasoning. The fundamental problem is that suspending freedom of speech or symbolic speech in just one instance, could lead to future expansions of that suspension. What I mean is that if flag burning becomes illegal because it’s a symbol of unity, then eventually that might turn to censorship of the press, the quelling of protests, and the silencing of the people. This flies directly in the face of the first amendment, which says prohibiting the free exercise thereof; or abridging the freedom speech.
So I believe the court got this right the first time. Now you ask the question, what does that say about your loyalty to the American Flag and the country itself if you support flag burning? Well, the answer is easy. I am a loyal American who votes and participates in our wonderful republican democracy. I do not support flag burning. I think it’s really disrespectful because our troops have fought for that flag. They have given up everything for that flag to wave in the air. They died for that flag and our country. My grandfather was enlisted in the military during World War 2. He served his country and help make the flag a symbol for peace, liberty and unity. What I do support is anybody’s right to burn the flag in protest or anger or hate or honor. It doesn’t matter the viewpoint of why your burning it. The fact is not everyone will agree with your decision. There is no way to possibly legislate a viewpoint. Its an opinion, not a fact. Therefore I believe that Justice Brennan and the Majority opinion was the correct one. Justice Stevens dissent is fundamentally flawed.
I hope that you found this to be somewhat educational and interesting. I didn’t want to bore out every single detail. I’m also hoping to do more this type of post. Constitutional law is fun to me and its interesting, challenging and tedious. I think its a very cognitive thought producing process that can really expand your argumentative skills and make you consider the simplest facets of life and how they are related to the government. What people say that politics doesn’t interest them, I wish I had the time and attention to explain them that it matters deeply to every individual. The constitution protects our freedoms which allows many people to ignore the fact that politics is in everybody interests especially in democracy. Trust me, the founding fathers experience a government that was unresponsive and didn’t allow them representation. They fought a war to govern themselves. The beauty of the revolution was the ability to participate in your own governing.
Thank you for reading!