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Your Right to Burn the Flag
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What does it mean when someone waves the American flag?
Is it an act of patriotic love, so genuine and exuberant that physical action -- presumably in a public arena -- just comes naturally? Might it be an act of longstanding tradition, which many folks partake in simply because it is expected of them and peer pressure would condemn breaks from the norm?
It may be a purely manufactured phenomenon, something certain individuals would rather not do, yet go through with for image purposes. Perhaps some folks get kicks from grabbing a stick with some cloth attached to it and brandishing this around willy-nilly.
Yet other people might see a crowd with flags in hand and want to join the fun -- for no other reason than sheer enjoyment’s sake.
The bottom line is that people wave the American banner for their own purposes. This boils down to freedom of expression or, to use its alternative title, ‘speech’. Thankfully, that is a bedrock principle in our constitution -- as much as any such thing can exist in a document which is reinterpreted (i.e. rewritten) in accordance with prevailing societal trends.
One must admire the honesty of progressives, who generally admit that they favor a loose interpretation (i.e. one which changes to meet political goals). Conservatives, meanwhile, often kvetch about their opposite numbers’ perspective, yet favor much the same thing themselves.
Flag-burning stands a paramount example of this.
“U.S. Senator Lindsey Graham (R-South Carolina) said he looks forward to voting in support of the flag protection amendment today,” his office declared back during 2006. “The amendment restores the authority of Congress to pass a flag desecration law if it chooses. The amendment is very close to garnering the 67 votes necessary for a constitutional amendment to pass the Senate.
“Graham noted the amendment is necessary because of a 1989 Supreme Court 5-4 ruling that said flag burning was politically expressive conduct and permitted under the First Amendment.”
The Senator spoke as follows: “I enthusiastically support the constitutional amendment allowing elected officials to protect the American flag. Asking Americans to respect the flag of our nation is not an undue hardship. It also does not impede the rights of any Americans to strongly express their displeasure on any issue.
“Unfortunately, because of a Supreme Court decision, a constitutional amendment is the only mechanism to change the result. If passed by two-thirds of the Congress, I believe this amendment will be ratified by the states.
“I support the right of free speech however the physical desecration of our flag is not free speech. It’s an unnecessary destruction of one of our nation’s most important symbols. The constitutional amendment will restore the right of the legislature to protect the flag and passage of this amendment is long overdue.”
Got that? Free speech is free even though the government can criminalize what you say, with full recognition that no violent threats or ‘fighting words’ were cast.
Lindsey’s logic is not the stuff of sage statecraft, but mushrooms best gone uneaten. Mercifully, his amendment went out the window.
The Constitution says it “shall make no law .... abridging the freedom of speech.” A plain-meaning interpretation of these words, even for the non-lawyer such as yours truly, is easy. Unless one uses ‘free speech’ as a license to directly impede others’ legally-defined rights, folks should be able to say whatever the hell they please.
Even if the overwhelming majority of Americans are offended, free speech renders that tough you-know-what. This is why freedom of expression exists in the first place; so controversial folks would not be tried for communicating unpopular views. If just socially tolerable expression was protected, there would be no protection to speak of.
A government which tries to regulate your peaceful speech is out to control your very thoughts. No country that bans flag-burning can earnestly describe itself as ‘free’. In fact, a nation that permits the desecration of its standard is truly great, for the primacy of the individual is recognized above collectivist concerns (i.e. social conformity).
While the flag-burning-inquisitors have been quiet for years, their murmurings are beginning to erupt again. May free speech ultimately reign supreme.,
Joseph Ford Cotto is, the editor-in-chief of The San Francisco Review of Books. Email him at