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.
Dear Rick Santorum:
I won’t make this very long. This message is too important to be left open to interpretation (which you demonstrate time and again to be horrible at).
Actually, I can sum up the message in pretty short order: GET OUT OF THE PRESIDENTIAL RACE.
It’s not that I think you’re necessarily a bad guy. I believe you genuinely care about America’s blue-collar majority, probably quite a bit more than Mitt Romney or Newt Gingrich. Unlike the current resident of 1600 Pennsylvania Avenue, I also believe that you’re a man of conviction whose word is as good as any signed contract. In fact, I think you’re probably not unlike many people I know personally. Your politics, however, are better suited to running Pakistan than the USA.
Numerous independent and non-partisan economists have reviewed your spending proposals. All of them agree that of the proposals currently out there, yours is the most fiscally irresponsible. We’re enduring a Presidency in which the federal debt will double in 4 years. Somehow, doubling it again by 2016 doesn’t strike me as either responsible or *ahem* conservative.
But more alarming than that is your commitment to theocracy as an overriding governing principle. That anyone can as flippantly dismiss the separation of church and state as you have, and still be considered a major candidate, speaks volumes about the mess the Nation has become. That you seem to read meaning into the 1st Amendment that isn’t there doesn’t speak very well of your professors at Dickinson. That you seem certain that people of faith are excluded from providing input into government affairs is either the result of extreme bigotry or extreme blindness on your part. If it’s the former, then nobody but another bigot could want you for President. If the latter, you’re too stupid to be President.
I’m writing this as man of deep religious faith, but also an American citizen. I’m fine with you practicing Catholicism openly. But I doubt you feel the same about the millions of your countrymen who are equally faithful regarding other religions. You’ve made it abundantly clear that you certainly do not respect the rights of millions of more to not practice any faith. I’m not going to pretend to know everything there is to know about Catholicism, but surely you were taught the Golden Rule at some point (some version of it seems to be the underpinning of every Christian religion I’ve encountered). Anyway, that’s what makes the 1st Amendment unique among the laws of men: we actually codified the idea that if you respect everyone’s else right to speak, write and pray as they like, they’ll respect yours to do the same. You know, the whole Do Unto Others thing – the part of your faith you seem to have left at the altar of politics.
The longer you stay in the race, the longer the press will be obligated to publicize you and the moronic things you say. But if you drop out now, you can still go on speaking tours of every KoC hall in America. You can still write op-eds for the weekend newspapers. You’ll still have the same right as every other citizen to weigh in on the important topics of the day. But those of us who really don’t want have your misguided opinions shoved down our throats won’t be forced to listen to you every morning, noon and night – to the exclusion of the real problems facing us.
See, there are people in America who actually care about fixing the country – and not turning us into a broke, corrupt and contemptible nation. I know, I talk to them every day of the week. And with you out of the way, the public discourse can return to matters of substance. If you love your country as much as you profess, than do us a favor Rick. Get out.
Political Baseballs 