Matt McDaniel

4 minute read

The President-Elect took to Twitter (again) to slam protesters (again) for burning American flags (again). His 139 characters were: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”

We can understand where the President-Elect is coming from, even if we realize that he’s probably on the wrong side of the Constitution. People taking a symbol of freedom and liberty and lighting it on fire as a protest doesn’t make a whole lot of sense. See, if it were the symbol of tyranny and oppression that they claim, they would certainly not be allowed to light it on fire. Hence, of course, why, as cathartic as a flag protection law would be, it doesn’t make a whole lot of sense when it gets proposed.

There is the legal argument that has to come first before we dive into the, albeit simpler, “gut argument.” See, the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989) decided, in a 5-4 opinion, that flag burning was protected speech under the First Amendment. There was an interesting divide in the Court’s opinion that put Justice Scalia in the majority (saying that flag burning was free expression) and Justice John Paul Stevens, a noted progressive in the minority (arguing the government had the right to punish the “disagreeable conduct” of the protesters).

In effect, Justice Scalia, noted champion of limited federal power and (erstwhile) crusader against leftist ideology was the swing vote that allowed protests to continue igniting the symbol of the United States in the streets. Thus we come to the oddity of Trump’s tweet and the, seeming, contradiction of Trump wanting to appoint Supreme Court Justices “in the mold of Justice Scalia” while, simultaneously, advocating the overturning of a case where Scalia was the swing vote.

Look, flag burning isn’t the biggest issue that’s going to (maybe) come before the Supreme Court. A Trump appointee will have far more pressing cases to hear. Certainly, we are aware that Justice Scalia was more impactful than simply leaning towards a libertarian interpretation of the Constitution on a case about the right to protest and free expression.

Here’s the deeper, and probably simpler, point about this flag burning discussion and why the President-Elect is probably wrong. Yes, flag burning is reprehensible. It is taking a symbol that has liberated millions of people from oppression and stood as a bulwark against the tempest of communism (and that was all just in the last century). We understand, rightly, that America hasn’t always made the right decisions or been a shining example of justice, but, we also understand that, taken as a whole, the history of the United States, and its impact on the world, will have driven the course of humanity towards liberty. Someone taking a symbol of that progress and lighting it on fire for a personal gripe or because of a disagreement with American policies should, rightly, be shunned and disowned from our political discourse.

To be clear: there is never a reason to burn a flag in protest and it should never be tolerated. However, we need to understand that the solution to protesters burning the symbol of our nation is not to criminalize the practice and, in a more draconian twist, revoke the citizenship of the perpetrator. The fact that the perpetrator has the freedom to burn the flag, in fact, invalidates the protest in the same way that arresting them in the attempt would lend to its truth.

Without taking the dialogue here into “reductio ad Hilterum,” we understand the concept that totalitarian governments typically elevate the State to a quasi-divine status. Hence, burning the flag, or destroying state symbols, in totalitarian governments is seen as an attack on the State and as wildly subversive behavior. The crackdown on such actions is severe.

This crackdown, in turn, spurs further dissent and attempts to undermine the authority of the State. Obviously, you can see where the “slippery slope” argument comes into play here. While most flag-burning opponents would say that the regulations should simply be about burning an American flag, and nothing more, we can imagine how we would have to draw those ordnances in order to make them apply to patriotic symbols (e.g. what if it was a flag with forty-nine stars? Would the same law apply?). Certainly if we were to start revoking citizenship over “deplorable” behavior, we would set a disturbing precedent that the State could act out of malice instead of out of its own self-defense.

We can all agree that there’s some delight in watching a flag burner accidentally immolate himself. However, the State taking action to criminalize this behavior would only seek to validate the protest. So, continue to burn the flag in misguided protests and be thankful that you have the freedom to do it. While the President Elect is wrong on this issue, if he holds to appointing Supreme Court Justices like Antonin Scalia, the American people won’t have to worry about the President Elect’s tweeted concerns becoming a reality.