Don't Burn this Flag: Debunking Free Speech Hypocrisy

The constitutionality of flag burning has been a point of mainstream political contention in our country for over half a century now. More recently though, this particular legal conundrum has proven far more divisive within one side of the spectrum than the other. On the left, liberals tend to agree that flag-burning should be permitted without legal repercussions, and that it is a legitimate act of free expression that ought to be broadly protected by the First Amendment. On the right, however, views on this topic are not quite as aligned. That being acknowledged, the Supreme Court has attempted to weigh in and settle this ongoing debate several times already. 

In the first landmark case of Street v. New York (1969), the Court rejected a lower court’s characterization of the flag burning as an “act of incitement,” holding instead that convicting someone of this action does not appear to further a compelling government interest. Then, in Smith v. Goguen (1974), the Court struck down a Massachusetts law that forbade “publicly… treat[ing] contemptuously the flag of the United States,” on the grounds that the statute was simply too vague. Justice Byron White invited national criticism by contesting this holding. He argued that the Constitution actually did allow for laws that prevented unpatriotic acts like flag burning when he wrote that: “There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection.” Following his lead, Chief Justice William Rehnquist added to the Goguen dissent by asserting that: “The significance of the flag, and the deep emotional feelings it arouses in a large part of our citizenry, cannot be fully expressed in the two dimensions of a lawyer's brief or of a judicial opinion.” Fifteen years later, in Texas v. Johnson (1989), the Court once again held that a citizen’s burning of a flag was indeed a protected form of symbolic speech under the First Amendment. In issuing this opinion, the 5-4 majority found that flag burning fell into the category of expressive conduct and that it had a distinctively political nature. Furthermore, the Court maintained that the mere fact that an audience takes offense to something does not in and of itself justify its prohibition. Congress hastily responded to this controversial ruling by passing an anti-flag burning law called the Flag Protection Act of 1989. Unsurprisingly, the Court was quick to strike down this law as it deemed it unconstitutional in United States v. Eichman (1990). 

Most recently, Justice Antonin Scalia posited that the First Amendment was originally publicly understood to protect speech that was critical of the government because this is the particular type of expression that aspiring tyrants are most likely to suppress. Flag burning falls under this category. For this reason, Scalia reluctantly determined that it ought to remain constitutional. 

As much as I’d like to agree with Justice Scalia, he appears to innocently overlook the profound significance of the flag in this case. Of course, the government may not prohibit the expression of an idea merely because society finds the idea offensive or disagreeable as this would violate the most basic purpose behind the First Amendment. This is commonly understood. That being acknowledged, Justice Stevens reminds us that it is equally well settled that certain methods of expression may indeed be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in affording the individual speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition. Therefore, despite any suggestions to the contrary contained in Texas v. Johnson, the government maintains an entirely legitimate societal interest in protecting the symbolic value of the American flag because it serves at least two practical purposes: In times of national crisis, it actively inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; and at all times, it serves as a reminder of the paramount importance of pursuing the ideals that characterize our society.

After all, what does the American flag symbolically represent exactly? According to the national archives, no other symbol captures the pride and glory of our nation quite like the American flag. Given that it has flown as our national emblem without interruption since 1777, the American flag remains a living piece of history as well as a common source of identity and unity for all citizens. The Stars and Stripes embody the qualities that make our nation great: liberty, justice, freedom, patriotism, and national purpose. For these many reasons, it’s safe to say that the American flag is much more than a mere display of political expression advocating for arbitrary values. Rather, the American flag symbolizes the uniquely American conception of individual liberty and freedom of expression. Moreover, it honors the bedrock principles our country was founded upon, without which any political speech would be effectively rendered meaningless because there would be no guarantee that it is recognized by the government in the first place. 

That all being understood, a deeper look into the flag’s symbology reveals the following disturbing reality: burning this sacred symbol is both inherently contradictory and incoherent. Put differently, this action seems to parallel the concept of arguing against an/the almighty God. According to C.S. Lewis: “When you argue against Him, you are arguing against the very power that makes you able to argue at all: it is like cutting off the branch you are sitting on.” Much in the same way, it seems that when citizens protest by burning the American flag, they protest the symbol of the very apparatus that grants them the ability to protest at all. This self-contradictory action undermines the legitimacy of the expression and seems to invoke what Chesterton postulated when he wrote: "There is a thought that stops thought, and that is the only thought that ought to be stopped." This call to adopt concrete standards could not be more instructive to the flag burning dilemma because it reminds us that there is no such thing as absolute freedom of expression in America -- for a couple of willfully ignored reasons that I shall explain below.  

First off, since the American privilege of free speech is predicated upon an enduring social contract between the government and the citizenry, free speech must be distinguished from a free marketplace of ideas. These two concepts are certainly related to one another, yet they must avoid being conflated. A free marketplace of all ideas and forms of expression would, at least in theory, tolerate flag burning. Conversely, flag burning does not seem like something that we can possibly (or practically) permit if we truly intend to preserve the integrity of freedom of speech in our country, because this obscene action publicly desecrates the very source of our right to free expression. So the question remains, should we permit citizens to exercise their right to free expression via debasing the very symbol that gave them this right in the first place? 

Secondly, it’s worth noting that this illusory notion of absolute or pure freedom of speech that so many pundits champion nowadays is not only fictional -- but also simply incongruent from a linguistic standpoint. After all, this is a limited world that we all partake in. Accordingly, we have limited language to work with, within a limited framework being the modern English language. By this, I am simply acknowledging that when we commonly understand words to mean one thing; the same words cannot simultaneously mean something else at any given time. As a result, it is impossible to represent the myriad of views people have and not to encourage some while at the same time discouraging other forms of expression. Hence, the finite nature of our common language and human faculties necessitates the reality of de facto speech standards. 

Thus, the takeaway here is that there is no such thing as protecting all viewpoints or even permitting them all within the public sphere, since they are not all treated with equal credibility or acceptance. In other words, there is no such thing as absolute freedom of speech and there never has been in this country, so the question is not whether or not there should be any standards; it is simply what ought to be the societal standards for acceptable forms of expression. After all, there have always been broad swaths of speech that have not been permitted by law: threats, sedition, fighting words, fraud, obscenity, etc. Historically, the boundaries of permissible speech have shown to evolve and adapt over time with legislation. That being understood, it seems well past time that we acknowledge the lunacy of this notion of absolute freedom of speech -- and instead commit ourselves to fighting for substantive standards, rather than merely procedural ones. In the case of flag burning, I fear that advocating for the mere procedural protection of those who wish to protest ‘misses the forest for the trees’ because it fails to recognize the reality that there is no such thing as neutral when it comes to expression. In theory, neutrality might seem plausible, but in practice it manifests as something else. Allowing citizens to deface the very symbol of their right to protest is not a neutral standard by any means, as much as we might like to believe it is. Rather, permitting citizens to publicly disgrace our country’s values in this way constitutes a de facto speech standard of its own. 

In conclusion, I would humbly recommend that we reevaluate the constitutionality of public flag burning as a legitimate form of expression. After all, there are plenty of more effective ways to protest the government and to redress grievances -- all while doing so in a more logically coherent way. Furthermore, it is worth reminding ourselves that the Founding Fathers were not authoritarians or fascists. Thus, neither will we be for transparently endorsing more substantive standards with regard to freedom of expression. This all goes to say that outlawing public flag burning will bolster the intrinsic sanctity of speech, at the worthwhile cost of suppressing this paradoxical expression. In this way, overturning the constitutionality of flag burning will render all other forms of expression more salient. While we often pretend that free speech in the American tradition implies that one may express their opinions at all times and that no manner of speech ought to be actively disparaged -- placing some prudent restrictions on things such as flag burning may very well send a resounding message to the broader public: that while you always retain the right to disagree with the government and to express your discontentment, you will be duly punished for abusing this liberty in order to incinerate the very fabric of liberty itself. Ultimately, a line must be drawn somewhere in the sand. And so I humbly ask, if a line cannot be drawn here, in order to resolve such blatant incoherence -- can it really be drawn anywhere?

Tom Bickel is a junior concentrating in Political Science and Philosophy. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.