Nobody should be allowed to burn the American flag – if the do, there must be consequences – perhaps loss of citizenship or a year in jail. – Trump Tweet
It’s an opinion, a valid one.
Everyone is entitled to an opinion. That’s called freedom.
Freedom: the power or right to act, speak, or think as one wants without hindrance or restraint.
Freedom is arguably the very foundation of the United States.
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? – Patrick Henry
But what good is the symbol of freedom if freedom itself is destroyed?
US Flag Code
The United States Flag Code establishes advisory rules for display and care of the national flag of the United States of America. It is Chapter 1 of Title 4 of the United States Code (4 U.S.C. § 1 et seq).
Most people don’t know a flag code exists, much less what it says. The US Flag Code is not law but advisory rules. More importantly, as advisory rules, no penalties for ‘violation’ are mentioned.
The Law
In 1968, Congress approved the Federal Flag Desecration Law after a Vietnam War protest. The law made it illegal to “knowingly” cast “contempt” upon “any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it.”
In 1989, the Supreme Court decided in Texas v. Johnson, 491 U.S. 397 (1989), the First Amendment to the Constitution says it’s unconstitutional for a government (whether federal, state or town) to prohibit the desecration of a flag because it’s seen as “symbolic speech.” While burning a flag is actually an action, a non-verbal act makes a similar statement.
Freedom is what the flag symbolizes, particularly freedom of speech.
Freedom of speech: the right to express any opinions without censorship or restraint.
Due to that symbolism, many people believe the flag should be respected.
Respect: a feeling of deep admiration for someone or something elicited by their abilities, qualities, or achievements.
In response to Texas v. Johnson, the 101st Congress passed the Flag Protection Act of 1989, which attempted to circumvent the Johnson ruling by prohibiting mistreatment of the flag without regard to any message being conveyed.
In 1990, the Supreme Court consolidated United States v. Haggerty with United States v. Eichman, 496 U,S, 310 (1990). In addition to reaffirming the Johnson decision relating flag desecration to First Amendment free speech protection, the Court stated:
The mere destruction or disfigurement of a symbol’s physical manifestation does not diminish or otherwise affect the symbol itself. The Government’s interest is implicated only when a person’s “treatment of the flag communicates a message” to others that is inconsistent with the identified ideals of the flag.
If a person burns a flag as a symbolic form of speech, then such treatment of the flag is communicating a message that is consistent with the ideals of the flag… namely freedom.
Burning a flag is the current discussion… but will it stop there?
Defending the rights of groups that the government tries to censor because of their viewpoints is at the heart of what the First Amendment and the ACLU stand for, even when the viewpoints are not popular…. If we don’t protect the free speech rights of all, we risk having the government arbitrarily decide what is, or is not, acceptable speech.- ACLU statement in a 2012 defense of Traditionalist American Knights of the Ku Klux Klan (TAK).
Slippery Slope
The Supreme Court has repeatedly focused on First Amendment wording, Congress shall make no law…abridging freedom of speech, erring on the side of caution when addressing free speech protection – and with good reason.
We live in a diverse society.
Not just color and ethnicity, but diversity of thoughts and experiences too.
Along with freedom of speech, freedom of expression is held dear.
Freedom of Expression: any act of seeking, receiving and imparting information or ideas, regardless of the medium used [sometimes used synomously with freedom of speech].
The 1968 Federal Desecration Law and the 1989 Flag Protection Act focused on the US flag as it was traditionally used – as a flag.
Desecrate: treat (a sacred place or thing) with violent disrespect; violate.
Putting aside the questions of punishment, and severity of punishment, how will “desecrate” be defined?
Today, a lot of people show their patriotism and pride by wearing the flag on shirts, shorts, hats, bandanas, bikinis, pajamas, and even under clothes.
Others find wearing the US flag offensive. Who’s opinion is right? Whose rights should be protected?
Can you burn a shirt with the flag on it? Is that the same or different? Does everyone agree?
Will there be a ban on wearing the flag on any clothing items… or only some items, like underwear? How will that be enforced? House searches? Body searches? Witness statements?
Will there be a ban on the manufacture of those items? How will it be enforced in other countries where a large number of US clothes are produced?
What about tattoos?
Does everyone agree on whether wearing the US flag, as a tattoo, is okay? Who decides?
Does location matter? What if a person tattooed the US flag on a questionable location?
Does intention matter? What if a person intended the flag tattoo to be disrespectful?
What about upside down flags or flags with some other symbol over it?
When we start limiting freedom of speech and expression, we are on a slippery slope.
Do we want the government to arbitrarily decide what is, or is not, acceptable speech?
What about the desecration of other ‘sacred’ things as a form of speech or expression? The US Constitution? The Declaration of Independence? Religious books? Religious symbols?
Do we want the government to arbitrarily decide what is, or is not, sacred?
Were these not some of the same questions the Founding Fathers asked themselves when contemplating independence in 1776?