In the 1989 case “Texas v. Johnson,” SCOTUS handed down a 5-4 ruling according to which flag burning was a form of speech protected by the First Amendment. Now if you read the amendment you will find no reference to flag burning. The subsumption of flag burning under protected speech required interpretation and argument and a vote among the justices. The 5-4 vote could easily have gone the other way, and arguably should have.
President Trump’s recent Executive Order has set things right:
Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
The bit about ‘fighting words’ invites commentary.
Ought flag burning come under the rubric of protected speech? Logically prior question: Is it speech at all? What if I make some such rude gesture in your face as ‘giving you the finger.’ Is that speech? It is a bit of behavior, no doubt, but there is nothing verbal about it. So consider ‘Fuck you!’ which is verbal. If it counts as speech, I would like to know what proposition it expresses. The content of an assertive utterance is a proposition. Propositions are either true or false. ‘Fuck you!’ is neither true nor false; so it does not express a proposition. It expresses an attitude of disdain, disgust, hatred, contempt, bellicosity. Likewise for the corresponding gesture with the middle finger. The same goes for the burning of a flag. If someone burns a flag, I would like to know what proposition the person is expressing. There isn’t one, or at least there isn’t one that transcends the merely biographical. “I hate the nation this symbol stands for!” Say that and you are merely emoting.
The Founders were interested in protecting reasoned dissent about matters of common interest; the typical act of flag burning by the typical flag burner does not rise to that level. To have reasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are. I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech. Actually, I am more than skeptical: I am strongly inclined to deny any such subsumption.
My point, then, is that since flag burning is not speech, it is not protected speech. Of course, it does not follow that it is not in many cases an illegal act.
Am I suggesting that there should be a flag burning amendment to the U. S. constitution? No. Let the states and the localities decide what to do with those who desecrate the flag. Let’s consider some examples.
- A man buys an American flag and burns it in his fireplace. Nothing illegal here.. He is simply disposing of a piece of private property in a safe manner. That is his right. The symbol is not the symbolized. Destruction of the former does not affect the latter. The spirit of the nation and its laws is not somehow incarnated in the piece of cloth, any more than the Word of God is incarnated in a copy of the Bible. (The final clause of the preceding sentence might ‘ignite’ some interesting discussions!)
- Someone steals or desecrates the flag I am flying on my property. That illegal act comes under local laws.
- Someone burns a flag in a tinder-dry wilderness area. That too comes under existing local and federal laws.
- Someone steals or desecrates an American flag on display at a state or federal facility. That also comes under existing laws.
- Someone burns a flag in the presence of others in a public place in a manner that is likely to incite imminent violence. Here is where Trump’s EO applies. We must not tolerate the incitement of violence by speech — which I have argued flag burning is not — or by such nonverbal behavior as flag burning.
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