Outside the Beltway

Trump Supports Amendment To Ban Flag Burning. He’s Wrong.

Donald Trump has endorsed a proposal by a Republican Senator to ban flag burning.

Doug Mataconis · Thursday, June 20, 2019 · 15 comments

Picking up on an idea that is thirty years old, President Trump endorsed a move by Republican Senator Steve Daines of Montana to amend the Constitution to prohibit the burning of the American flag:

President Trump is “all in” for a constitutional amendment banning desecration of the American flag, he said in an early morning tweet Saturday, backing such an effort by two Republican senators.

To commemorate Flag Day — which also happens to be Trump’s birthday — Sens. Steve Daines (Mont.) and Kevin Cramer (N.D.) introduced the amendment on Friday.

“All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!” Trump tweeted. (No love for Sen. Cramer?)

This isn’t a new position for the president, who a few weeks after the 2016 election tweeted: “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

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The emotionally charged question of burning the flag in protest has long divided Americans. Some, like Trump, believe doing so is disrespectful to people who fought for and died in service to the nation, while others say flag burning is exactly the kind of freedom patriots fight to protect.

As Michael Douglas put it at the end of the 1995 romantic comedy “The American President”:“You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest.”

Here’s Trump’s tweet:

This isn’t the first time that the President has raised this issue, as this tweet he sent after the 2016 election demonstrates:

The flag burning debate goes back some thirty years to 1989 when the Supreme Court issued its decision in Texas v. Johnson. In that case, the State of Texas prosecuted a man who had set fire to the American flag during a protest outside the Republican National Convention in Dallas in 1984. The State of Texas arrested and prosecuted a protestor named Gregory Lee Johnson under the state’s law making it a crime to burn the American flag. Johnson was convicted on the charge, which at the time called for a fine of up to  $5,000 and/or up to one year in jail. Johnson appealed his decision through the Texas courts and, eventually, his conviction was overturned by the Texas Court of Criminal Appeals, the highest state court for appeals in criminal cases, on the ground that the statute violated the First Amendment. That ruling was appealed by the State of Texas to the U.S. Supreme Court, which upheld the Court of Criminal Appeals ruling and ruled that flag burning was protected political speech under the First Amendment and that laws against such activity were unconstitutional.

The 5- 4 Court ruling, in which the states liberal Justices at the time were joined by none other than Reagan appointee Antonin Scalia, quickly proved to be controversial and soon became something of a rallying point for conservatives seeking to attack Democrats in vulnerable seats. Almost immediately, there were calls for a Constitutional Amendment to overturn the decision, but despite the fact that polling showed widespread public disapproval of the decision, there were clearly insufficient votes in Congress or the states to amend the Constitution.

Instead, Congress passed a Federal law purporting to outlaw burning of the flag nationwide that supporters claims could get around the Court’s decision. Very quickly, though, that law was also struck down along much the same lines as the Johnson case in United States v. Eichmann. After that decision, the issue of flag burning pretty much died off as quickly as it had risen, although there have been several attempts by Republicans to push through a Constitutional Amendment, the most recent being during the Administration of George W. Bush. That move was opposed by several Republican Senators, including Kentucky’s Mitch McConnell, now the Senate Majority Leader, who wrote an Op-Ed at the explaining his decision:

I don’t share the slightest shred of sympathy with any who would dare desecrate the flag. They demean the service of millions of Americans, including my father and the brave men and women currently fighting the War on Terror. They deserve rebuke and condemnation—if not a punch in the nose.

I revere the American flag as a symbol of freedom. But behind it is something larger—the Constitution. The First Amendment, which protects our freedom of speech, is the most precious part of the Bill of Rights. As disgusting as the ideas expressed by those who would burn the flag are, they remain protected by the First Amendment.

Our Founding Fathers wrote the First Amendment because they believed that, even with all the excesses and offenses that freedom of speech would undoubtedly allow, truth and reason would triumph in the end. And they believed the answer to offensive speech was not to regulate it, but to counter it with more speech. No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that.

Weakening our First Amendment could also set a dangerous precedent for the rest of the Bill of Rights. If we successfully carve out an exception to one basic freedom, perhaps those who seek to curtail our Second Amendment rights—the right to bear arms—will carve out another. Or the right to own private property, as expressed in the Fifth Amendment, could come under assault.

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The solution to such offensive expression is more freedom, not less. More freedom will reveal the abhorrent falsehoods behind flag desecration. And as our courageous soldiers on the battlefield continue to demonstrate every day, freedom is the most potent weapon Americans have.

Kevin McCarthy, who at the time was House Majority Leader and is now House Minority Leader, took much the same position:

Despite the failure to pass a Constitutional Amendment in the wake of the Supreme Court’s second flag burning decision, politicians, mostly Republicans, continued to introduce proposed amendments on the subject. All of those efforts have been unsuccessful, of course, but it has been clear each time that the real point of the proposed Amendment was to score political points against Democrats rather than actually amend the Constitution. Other than that, though, the issue has been a political dead end for since the Eichmann decision and was rarely talked about until Trump revived it this morning.

If Congress or any of the states attempted to pass another law banning the American flag as Trump suggested after the election, that law would clearly be struck down yet again, both because of the Supreme Court’s decisions on the subject and because it is obvious that burning the American flag as part of political protest is protected speech under the First Amendment.

The fact that flag burning is an activity rather than speech is irrelevant, of course, because the Supreme Court and other courts have repeatedly held that activity that is meant to be expressive is just as protected as speech itself, so that dispose of one of the more frequent arguments that people who have supported Trump’s position have advocated in the past. Additionally, the fact that the flag is a national symbol of what the United States stands for and those who have fought and died for is also irrelevant for First Amendment purposes. There is no exception in the First Amendment that makes it acceptable for Congress or any other body to create an exemption that applies to national symbols, and there is quite simply no good reason why such as an exception should be created. Finally, advocates of laws against flag burning have attempted to argue that the laws can be upheld because the activity is “offensive,’ but this argument similarly fails to pass Constitutional muster. As the Court has ruled in numerous cases involving everything from people protesting outside of a military funeral to a law that makes it a crime to lie about having received military honors, offensive speech deserves First Amendment protection just as much as speech that does not offend.

This is the reason that Trump and Daines are now talking about a Constitutional Amendment rather than a law. The reality, of course, is that they are proposing something that is quite simply not going to happen, not only because of the Supreme Court’s emphatic rulings on the First Amendment in the past and its current position on so-called “offensive” speech but also because there clearly isn’t any desire on the part of a Congress to resurrect an issue that, in the end, isn’t very important. In order to move a Constitutional Amendment forward, they would need a two-thirds vote in favor from both the House and the Senate, and that’s simply not going to happen. If such a measure were to make it through Congress, it would need to be ratified by three-quarters of the states, and again that’s something that is incredibly unlikely.

As with the mostly Republican politicians who used the Court’s decision in Johnson as a political weapon, though, it seems rather obvious that Trump doesn’t really care about the fact that what he’s proposing could never actually be enacted. Instead, he seems intent on using the idea as a political weapon and a means to rally his supporters, who likely support the idea of making flag burning illegal, behind him. With the 2020 election cycle just beginning, you can expect Trump and other Republicans to bring this issue up repeatedly to keep the base agitated. They won’t ever actually get anything constructive out of this, of course, but they will give the MAGA hatters the red meat they crave so much.

On a final note, I’ll simply remark that I wrote about this issue all the way back in 1990 when the public reaction to Texas v. Johnson was fresh:

In adopting the position of the opponents of the Supreme Court decision, one would have to accept the seemingly contradictory idea that in order to protect the symbol of a nation founded on individual liberty, one must restrict individual liberty. Taking this position also leads one into dangerous territory in relation to other areas of action or thought and the effect that they might have on the rest of society. After all, if flag burning can be banned because a majority of the public are offended by an attack on what they believe to be a sacred symbol, then why not extend the ban into other areas where an individual’s actions might be offensive to others? If we ban flag burning, then why not ban movies or books that depict in an offensive way religious figures or other subjects considered to be sacred? Why not ban magazines, films, or groups that offend the sensibilities of women, blacks, Jews, or any other minority group?

A person who opposes flag burning may argue that he would not extend his logic as far as that in the above examples. But the reasoning behind these examples and that behind flag burning are of the same majoritarian parentage: the belief that if a sufficiently large number of people find an activity offensive then they can use the coercive power of the state to regulate or, preferably, to ban that activity.

The problem, then, with taking the position that the flag should be protected even at the expense of individual liberty is not that flag burning or any other activity deemed to be offensive has some sort of redeeming value, or that symbols such as the flag are unimportant, but that in banning these activities, one is accepting a principle that is ultimately destructive of a free society. By accepting this principle, we are allowing for the creation of a society wherein appropriate expressions of patriotism, appropriate forms of artistic expression, and appropriate activities are decided by a process of majority rule that, rather than minimizing conflict in society, heightens it to a dangerous degree.

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It is undeniable that to most Americans, including those who value liberty, flag burning is offensive. We do not like to see someone set fire to a banner that is a symbol of freedom, especially when that person rejects the freedom the flag symbolizes. However, we must not allow our love for the flag-as-symbol to blind us to the reality that a law banning flag burning or desecration would be as much a restriction on individual liberty as would be a law banning publication of a book that seems to denigrate a religion. Neither must we forget that the moment one concedes that certain activities should be banned simply because they offend other people, one is allowing for the creation of an environment in which no one is safe to do what he might, lest he offend someone and bring down on him the heavy hand of the government.

Little did I know that we’d still be talking about this issue three decades later. The good news is that we are nowhere closer to banning flag burning while desecrating the Constitution now than we were then. Indeed, outside of Trump and his followers, I tend to doubt there are very many people who care about this issue anymore.