On Flag Day, Senator Steve Daines of Montana, along with Senator Kevin Cramer of North Dakota, introduced an Amendment to the US Constitution. This Amendment would give Congress the power to create legislation banning the desecration of the American flag. Know colloquially as the “Flag Burning Amendment,” this piece of legislation has been proposed over a dozen times and has failed to pass.
“Flag Burning,” or the desecration of the flag as a form of protest or expression, is protected under the First Amendment to the US Constitution. This protection was reiterated by the Supreme Court in 1989, following the decision of Texas v. Johnson. It is worth noting that among the five justices who decided in favor of Johnson, thus invalidating laws that prohibited any desecration of the flag, was Justice Antoni Scalia, a noted hardline conservative during his tenure on the bench.
What politicians in Washington and around the country fail to understand is that liberty is not always a pretty or comfortable state of affairs, but it is the most natural state of humanity. This can be seen plainly when looking at party politics; opposing views are able to coexist and even clash in an occasionally civil manner.
It seems though that there has never truly been an appreciation for the right to be part of any opposition from those in power. What sounds like reasonable arguments in favor of restriction and regulation are, in reality, weak allegories designed to stymie those would view legislation, policy, and authority with contempt.
Most often we hear people use the phrase, “You can’t yell fire in a crowded theater.” This tired colloquialism is the modern equivalent of shouting, “People will die!” It offers nothing to the debate and has a terrible past.
At the outset of World War One, Congress passed the Espionage Act, which made it illegal to pass information to the enemy or to subvert the war efforts through cooperation with foreign powers. In the context of a state of formal war, this would seem to make sense. The Act was a long-winded way of saying “treason.” But the Act when on to prohibit any action that “willfully [caused] or [attempted] to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or… willfully [obstructed] the recruiting or enlistment service of the United States, to the injury of the service or of the United States.”
Enter Charles Schneck, who was subsequently arrested and convicted under the Espionage Act for distributing leaflets to young men. These leaflets encouraged young men to resist conscription during the war, calling the draft “involuntary servitude,” thus making it illegal under the Thirteenth Amendment. Schneck was found guilty on three counts and received a ten-year sentence for each count.
The Supreme Court ruled against Schneck, upholding his conviction, with Justice Oliver Wendell Holmes, Jr. providing the majority decision:
Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.
It was in this decision that he wrote those famous words, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Such a precedent in the hands of the ever-changing landscape of Congress would give unparalleled power to the state, allowing it to restrict any speech in the name of “national interest” or security. Fortunately, Holmes’ opinion has been torn down, piece by piece, and freedom of speech has been nearly, but not entirely, restored to its full intent.
The simple reality is that if we are unable to protect the rights of those with whom we disagree, even those of whom we hate, we do not deserve those same liberties. This Congress, and the many before it, do not seek to protect the rights of the individual, but the rights of their parties. Liberty is not allowing only those things with which we agree. Liberty is accepting that there are things with which we disagree, even despise, and they have every right to exist freely, despite your feelings.
Tired Amendments and Shameless Pandering
Flag Burning Amendments have been introduced and failed several times over the decades; multiple presidents have voiced their support. Laws have been passed and struck down in their stead. Thousands have burned flags in protest of such laws. So why introduce such an Amendment once more into the public realm of debate and slander? Simply put, it’s pandering.
Steve Daines, who introduced the Amendment, is running for reelection in 2020 and will be challenged heavily from the left. By choosing another divisive and controversial topic, he can slap the text of his Amendment on a mailer and send it out his donors. Daines can even leverage support from national pundits and the president to make himself stand out in Montana.
Trump has spoken favorably of the prosecution of flag burners, suggesting in 2016 that punishment should include “loss of citizenship or a year in jail.” He was quick to praise Daines’ proposed Amendment, calling it a “no-brainer.”
Other pundits also voiced their support. Candace Owens of Turning Point USA tweeted:
“If I were President, the punishment for burning the U.S flag would be the renunciation of citizenship. No jail time, no fine— simply one year to liquidate your assets and get the hell out of our country.”
Not only is this Amendment perfect fodder for reelection campaigns, but also for laying the groundwork for future campaigns in 2022 and 2024.
Jack Posobiec of One American News Network went as far as to mention nationalism, tweeting, “You can’t have a serious nationalist movement that also supports destroying national symbols.” I have already shared my thoughts on nationalism and standards of patriotism; patriots are those willing to oppose, when necessary, their government, despite public perception of insubordination.
The list goes on, but not everyone is supportive of such an Amendment. Joe Walsh, former Congressman from Illinois and syndicated radio host tweeted, simply, “Freedom comes first. In America, you are free to burn the American flag.”
Allie Beth Stuckey, host of Relatable, beautifully summed up the difference between behavior that may not be socially acceptable and behavior that should be illegal:
Some of you seem to be confusing whether or not something *should* be done with whether or not it should be illegal. Burning the flag is an atrocious act, but our freedom to do so as a form of expression shows just how radical our defense of liberty is in America.
She went on:
People— our military did not fight for a *flag.* They fought for the values the flag represents. One of those values is freedom of speech—even (and especially) when the speech is highly offensive.
Josh Billinson, an editor at the Independent Journal Review, pointed out the hypocrisy of “free speech advocates” tweeting, “We have the dumb flag burning debate every few years but it’s really good at exposing which ‘free speech’ advocates don’t actually care about free speech.” Billinson’s point is incredibly important in this current climate of demands for restrictions to speech and expression.
Republicans are generally very quick to defend even the vilest speech, while not necessarily endorsing it themselves. Democrats have been more vocal in suggesting that “hate speech” should be regulated and restricted. A common term used by the right when engaging with those who suggest the use of “safe spaces,” “free speech zones,” or restricting speech at all, is “snowflake.” It’s funny to see that snowflakes exist on both sides of the unnecessary debate. Hypocrisy abounds.
The Great Experiment
The natural right to free expression being protected under Constitutional law has been the most powerful tool in the advancement of humanity. Without it, our country as we know it today would not exist. When speech and expression have been restricted in any measure, the great experiment that is our nation will have failed.
While we may feel offended, hurt, or even outraged at the sight of someone desecrating an American flag, part of us, even the smallest bit, must feel a sense of pride and security at the thought that we are living in a country that protects such actions.
The hard truth that those who support such laws must face is that this type of legislation is an exercise in hypocrisy and cowardice, not patriotism. You may confront flag burners. You may debate them. You may even hate them. But there are two things which you may not do: you may not use physical force to stop them and you may not prosecute them.
A law such as this is a slippery slope to a precedent that suggests that the state may decide what speech is acceptable and necessary and that which is not. We could eventually join our friends in the UK in an effort to regulate speech by arresting people who post offensive things on social media. We could join the Irish who, until 2018, prosecuted those who spoke or published “blasphemy.” Or we could join nations like China, North Korea, and Venezuela, who would simply prefer to execute or even massacre their own civilians then let them speak their minds.
A flag is merely a piece of cloth, which represents our values as a nation; destroying it in protest reflects those values. A flag is also someone’s private property; what they choose to do with it, so long as it is done safely, is not the business of others.
While this debate continues, the US continues to fall deeper into debt, the War on Drugs continues to victimize innocent people, our immigration system remains a mess, and we continue to fight unending wars in the Middle East. Stop being distracted. Stop allowing your emotions to be twisted. Think freely about the world around you.