President Donald Trump has recently drawn widespread corporate media criticism for issuing an executive order directing the Department of Justice (DOJ) to investigate potential criminal cases involving the burning of the American flag. While the Supreme Court seemed to have settled the flag-burning question in a landmark case decades ago, the President may have exposed a new wrinkle in the debate.
In accordance with Trump’s order, federal prosecutors in the nation’s capital filed two misdemeanor charges against a man who set fire to the flag outside the White House shortly after the order’s issuance. The flag burner, 54-year-old Jan Carey, who identified himself as a military veteran, explained that he did so in order to put the President’s order “to the test.”
To avoid directly challenging Texas v. Johnson (1989), in which the Supreme Court held that flag-burning constitutes speech protected under the First Amendment, the DOJ’s prosecution focused on the fact that Carey lit a fire outside a “designated area and receptacle,” and “in a manner that threatened, caused damage to, and resulted in the burning of property, real property, and park resources.”
Nonetheless, the real intent of the charges, and of the executive order that generated them, was transparently to challenge the Court’s rulings in Johnson and related cases. Carey’s prosecution will inevitably lead, as he intended, to such a constitutional challenge.
Leaving entirely aside the question of how far the President enjoys the authority to ban flag burning in D.C., let alone in the rest of the country, the case offers a welcome opportunity to revisit the Court’s jurisprudence in this field.
Texas v. Johnson overturned the conviction of one Gregory Lee Johnson for burning the flag outside the 1984 Republican National Convention meeting in Dallas as a protest against the policies of President Ronald Reagan. Johnson had been prosecuted under a Texas statute that prohibited the desecration of “venerated objects,” including the national flag.
However, the Court overturned his conviction on the ground that Johnson’s act was a form of “symbolic speech,” and was therefore protected from punishment by the First Amendment’s free speech guarantee (as applied to the states through the Constitution’s “due process” clause).
In particular, the Court majority (including, surprisingly, the professed textualist – but also libertarian-inclined – Antonin Scalia) held that the Texas law constituted an improper form of “viewpoint discrimination.” The Court’s reasoning was that the Texas law punished actions, such as flag burning, that might arouse anger in others, while specifically exempting from prosecution physically comparable actions that were respectful of venerated objects (for example, burning and burying a worn-out flag). Justice Brennan’s majority opinion stressed that the very notion of freedom of speech protects actions that society may find very offensive, whereas society’s outrage alone is not justification for suppressing free speech.
Far more plausibly, Justice Stevens argued in dissent that the flag’s unique status as a symbol of national unity outweighed “symbolic speech” concerns. Accordingly, he reasoned, the government could lawfully prohibit flag burning.
But even Stevens’s valid point may be an insufficient ground for upholding the right of the government to ban the desecration of the American flag, as it leaves the Court in the constitutionally dubious position of simply “balancing” competing concerns – as if a different Court might with equal justice subsequently decide that “symbolic speech” concerns actually outweigh the defense of national unity.
As constitutional scholar Christopher Wolfe argues in his classic study The Rise of Modern Judicial Review, balancing competing policy concerns is normally a job for the people’s elected officials rather than judges. The root of the problem here, which Stevens’s opinion fails to address, is the very adoption of the term “symbolic speech” to regulate behavior that has nothing to do with speech.
The doctrine of symbolic speech originated in a 1931 ruling by the Court in Stromberg v. California (1931), which held that “speech” might take a nonverbal form. This case reversedthe conviction of a woman who displayed a red flag as a symbol of opposition to the government.
In a subsequent case, Tinker v. Des Moines (1969), the justices ruled that students had the right to wear armbands as a form of protest against the Vietnam War, since such behavior was “closely akin to ‘pure speech’” and hence a constitutionally protected form of symbolic expression.
But in fact, these decisions, like Texas v. Johnson, grossly misapply the First Amendment, since they disregard the Founders’ very purpose in seeking to protect freedom of speech and of the press.
“Speech,” as any dictionary will confirm, meansmaking statements composed of words and (normally) sentences. Both the freedom of speech and that of the press are essential to republican government, since they enable citizens (and office holders) to express opinions about public issues aimed at persuading others that various public policies, or judicial rulings, are or are not conducive to the public good and to justice.
As Aristotle famously observes in his Politics, human beings, unlike other animals, are naturally “political” because they have the faculty of logos (reason or speech). Hence, they can deliberatewith their fellows about how they should be governed. He distinguishes logos from the mere sounds of pleasure, pain, fear, or anger that other higher animals are capable of expressing without rising to the level of deliberative argument.
Wearing armbands, holding up revolutionary flags, or burning the American flag are not at all expressions of logos that other citizens, or government itself, are intrinsically obliged to respect. Whether the causes that those actions represent are worthy or not, the acts themselves are merely expressions of feeling.
But in a free government, as James Madison (not only the “father of the Constitution” but the chief architect of the Bill of Rights) argues in Federalist No. 49, “it is the reason, alone, of the public, that ought to control and regulate the government. The [people’s] passions ought to be controlled by the government.”
Madison’s remark follows an explanation of why the Constitution’s authors made that document relatively difficult to amend. As this context indicates, the American Founders were under no illusions that human beings in their political behavior can be relied on to naturally follow reason rather than passion.
As Madison explains earlier in Federalist No. 49, too-frequent alterations to the Constitution would “in great measure, deprive the [American framework of] government of that veneration which time bestows on everything, and without which perhaps [even] the wisest and freest governments would not long survive.” While “this consideration” might safely be “disregarded” in “a nation of philosophers,” among whom “a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason,” “in every other [actual] nation,” even “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.”
There is good reason to believe that the authors of our Constitution indeed devised the “most rational” system of government ever established. British Prime Minister William Gladstone, writing some 90 years after Madison, proclaimed the Constitution to be “the most remarkable work known to me in modern times to have been produced by the human intellect, at a single stroke… in its application to political affairs.” And it remains, with a limited number of amendments, by far the longest-lasting constitution of any major nation in the world.
But as Madison’s remarks indicate, he would attribute its longevity not merely to the wisdom with which it was designed, but to the gradual development over time of a widespread popular reverence for our system of government and the principles on which it rests. That reverence – the spirit of which has led many thousands of Americans to risk and sacrifice their lives in their country’s defense – is exemplified by the high regard in which most of us hold the nation’s symbol, the Stars and Stripes.
Think, for instance, of the iconic photograph of soldiers hoisting the flag atop Iwo Jima following the terrible battle that preceded our victory there against the Japanese. Or of firefighters raising Old Glory over the rubble of the World Trade Center post-9/11. As a baseball fan and as the grateful offspring of an immigrant father and grandparents, I always find it heartwarming to see fans (mostly) standing reverently before the start of each ballgame to sing or at least listen to the National Anthem while gazing at the flag being raised.
Why shouldn’t Americans insist that anyone who chooses to enjoy the benefits of living in this country show respect for its flag? And won’t ideologically motivated Court decisions, based on a foolish political relativism that seems to devalue patriotism, tend to reduce respect for the authority of the Court itself?
But there is a deeper irony at work today; namely, that some other inherently political flags and symbols currently enjoy more legal protections than our own national flag. One need only look at the harsh punishments threatened toward anyone who desecrates the LGBTQ+ “pride flag” to see that this is the case.
In June, for instance, four Georgia teenagers were arrested for committing a “hate crime” by cutting up LGBTQ+ “pride” flags. Meanwhile, in Delray Beach, Florida, a teenager faces felony charges for leaving tire burnout marks on a street intersection painted in the colors of the “pride progress” flag, marking the second time the streetscape has been deemed vandalized since it was unveiled less than three years ago.
Even the U.S. government, under the leadership of former President Joe Biden, seemingly sought to elevate the pride flag above the American flag. In 2023, the Biden White House infamously displayed a pride flag side-by-side with two American flags, apparently violating the U.S. Flag Code. The administration was also scrupulous about placing rainbow flags on U.S. embassies abroad, prior to a 2024 Congressional ban on the practice.
No word, yet, on whether those Georgia teenagers will win vindication for their acts in the courts. Nor on whether Joe Biden’s version of pride won or lost his party votes in last year’s election. But one thing is certain – it’s time that America’s judicial establishment acknowledges government’s right to protect our flag from desecration.
David Lewis Schaefer is a Professor Emeritus of Political Science at College of the Holy Cross.
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