Early this morning, President-elect Donald Trump took to social media to announce his desire to take a piss all over the Bill of Rights. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” Is what he posted to twitter.
That belief is a slap in the face to those who truly value our liberty.
In the 1989 US Supreme Court case, Texas v. Johnson, a split court (5-4) held that burning an American flag as political protest is a form of symbolic speech protected by the First Amendment.
At a demonstration during the 1984 Republican National Convention in Dallas, Gregory Lee Johnson, a member of the evolutionary Communist Youth Brigade, was involved in a political demonstration that turned violent. The demonstrators marched through the streets, shouted chants, destroyed property, broke windows and threw trash, soiled diapers, beer cans and various other items, and held signs outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag stolen from a flagpole outside one of the targeted buildings.
Johnson was charged with violating a Texas law that prohibited the desecration of a venerated object. He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. On appeal to the Texas Court of Criminal Appeals the court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.
The case eventually made it’s way to the Supreme Court and in their decision the court found that the right to free speech does not end at the spoken or written word, but also includes “symbolic speech.”
Justice Anthony Kennedy, a Reagan appointee, in his concurrence expressed the sentiment that sometimes standing up for liberty, means standing up for things that you don’t agree with.
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
This morning after seeing, Chairman of the Libertarian Party, Nicholas Sarwark post his own brief thoughts on flag-burning to Facebook, I went ahead and shared my own updated version of that
I want to make this clear, I believe that the act of burning the American flag is a sick and disgusting thing to do. Furthermore, I believe that individuals who purposely desecrate the flag are asshole’s of the highest order.
I just believe that, you either believe in liberty or you don’t. Those flag burning assholes have the same right to burn Old Glory as I have to think they are assholes for doing it.
I will defend their right to be assholes until my dying breath.
In a conversation about the topic with a co-worker, I was accused of being “lukewarm” on the issue and told that burning a flag is disrespectful to the brave soldiers who died for that flag.
To that I said, only tyrants lock people in jail for the victimless crime of burning a piece of cloth. No man died for a piece of cloth, they died for the idea that that piece of cloth represented. Amongst those ideas, as our founding fathers so eloquently put it is that we “… are endowed by [our] Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
To lock someone up for burning a flag, makes us no better then the type of despots we claim to have opposed, if we start doing that… then those soldiers who many claim “die for the flag,” will truly have died for nothing.