Surprise! The First Amendment Doesn’t Protect Flag Burners
This morning, our President-elect took to Twitter with this:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Immediately, the world became unhinged.
“Flag burning is reprehensible, but it’s protected by the Constitution” is the general refrain I’m hearing. But does that statement hold water?
The supposed Constitutional protection for flag burning isn’t actually written anywhere into the Constitution. In fact, 48 states and the federal government have explicit statutes proscribing a penalty for burning, or otherwise desecrating, the United States flag. The federal statute is 18 US Code 700 and in part reads,
Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
I realize I’ve probably just sent your heads spinning, so I’ll give you a moment to recover. Go ahead, grab a glass of water (or whatever) and I’ll wait.
(Oh, good. You made it back. Had me worried there, for a minute. I know this is pretty shocking stuff and I’d hate to think I just gave someone a heart attack.)
Chances are, anyone under the age of 45 has been indoctrinated that flag burning is a Constitutional right. Indoctrinated by the media, indoctrinated by schools, indoctrinated by every institution controlled by the socialist (and treasonous) left in America. Sadly, that’s most of them. Actually, liberals have been trying the “Constitutionally protected” approach to flag burning going all the way back to 1907. That was the year the Supreme Court decided in Halter v. Nebraska that flag desecration was not a fundamental right.
What most people point to now in their zeal defend flag burning is the 1989 decision in Texas v. Johnson, in which the court invalidated the conviction of Gregory Lee Johnson. In 1984, Johnson decided to make his displeasure with President Reagan’s policies known by burning a flag during the Republican National Convention. He was convicted, sentenced to a year in prison and fined $2,000. He appealed, claiming his First Amendment right to political speech was violated.
What’s interesting is that the court did not overturn his conviction on First Amendment grounds. That narrative springs forth from Justice Anthony Kennedy’s concurrence, in which he wrote:
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free
Kennedy felt the need to mention the speech issue in his concurrence because that is not the grounds the Court used for issuing it’s 5-4 reversal. Instead, the court based the majority opinion on the basis that the Texas statute was designed to prevent rioting. Since both the state and defendant agreed that there was no riot, or even an incitement to riot, the statute violated the defendant’s 8th and 14th Amendment rights.
Not his 1st Amendment rights.
Why does this matter, you might ask? Isn’t a violation of a citizen’s rights still egregious, regardless of which right was violated? That’s rhetorical, of course. Any time the justice system violates Constitutionally protected rights is a perversion of justice. That’s precisely what the Court upheld.
However, buried in the Court’s decision was an affirmation of the 1907 decision in Halter v. Nebraska. That was the first Supreme Court case that upheld flag desecration as not protected by the Constitution. The majority opinion, penned by Justice Brennan dances around the subject of 1st Amendment protection of flag burning. He states that while the Court cannot find reason to grant a special class to speech involving the flag, it is within Congress’ purview to do just that, concluding:
Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see36 U.S.C. §§ 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations.
So, if you set aside what you’ve been told and what you’ve been taught, all of a sudden the President-elect’s statement is no longer quite so outlandish as at first seems. I cannot say I agree with his idea of stripping citizenship. After all, there is no crime for which we strip citizenship, not even treason. But jail and a fine? That seems perfectly acceptable. And as it turns out, Constitutional, as well.