The Blasphemy of Flag-Burning

It was an awful week for agitators who can’t resist setting everything aflame—you know, people who find themselves unable to speak unless it involves scorching the Earth.

President Trump unveiled yet another slew of whiplashing Executive Orders. One, in particular, will trouble even those who are not political arsonists. We call such people free speech absolutists. You find them on both sides of the political spectrum. Trust me when I tell you that they have already set their hair on fire in opposition to the President’s strong message that flag-burning will no longer be tolerated as free speech. They recoil at the mere suggestion of such secular blasphemy laws.

Trump is once more talking tough with MAGA dog whistles. The American flag deserves at least as much respect as Uncle Herschel in the Cracker Barrel logo. Legally, however, he’s not on solid ground. Like so many of his other experiments with executive authority, if challenged, the flag-burning Executive Order will doubtlessly be found unconstitutional.

For one thing, in our system of government, it is Congress and state legislatures that make laws and establish penalties for breaking those laws—and not presidents.

But even more importantly, the Supreme Court has long held that torching the American flag as an expression of political speech—specifically, in opposition to American policies—is safeguarded under the First Amendment. The sight of the Stars and Stripes ablaze and trampled upon might be upsetting to many—and at least one legal scholar believes it should be criminal—but we protect the rights of hateful bigots and raving lunatics to express themselves in nearly any manner they choose over the human dignity of those who are forced to listen.

Desecrating the American flag—or the Israeli flag, for that matter—is a vulgar act. But in a landmark 1989 decision, a divided 5-4 Supreme Court ruled that burning the American flag is permissible political speech.

George Washington would have been surprised. Before he became the Commander-in-Chief of the United States, he actually commanded the Colonial Army against the British in the Revolutionary War. He naturally knew that soldiers lose their lives and have their legs blown off defending this flag. Betsy Ross wasn’t wasting her time. The flag still has, and should absolutely have profound symbolic meaning—although that is regrettably less true on “elite” college campuses and among appallingly unpatriotic coastal elites.

Betsy Ross wasn’t wasting her time. The flag still has, and should absolutely have profound symbolic meaning—although that is regrettably less true on “elite” college campuses and among appallingly unpatriotic coastal elites.

Among Western democracies, the United States has always been more permissive when it comes to free speech. Neo-Nazis in the United States were defended by the ACLU back in the late 1970s when the residents of Skokie, Illinois, many of whom were Holocaust survivors, unsuccessfully tried to ban them from marching on the village green. The same motley crew of goose-steppers get marched straight to prison in Germany and Austria. There is a similar line of Supreme Court cases defending the rights of the KKK to burn crosses on the lawns of African-Americans!

Among Western democracies, the United States has always been more permissive when it comes to free speech.

Not very PC or DEI, if you ask me.

Similarly, European nations do not honor flag-burners with special free speech protections. Citizens in France, Germany, Italy, Latvia, Lithuania, Estonia and Poland know that turning a national flag to ash is a criminal act. Russians spend a year in jail for such desecrations of nationhood.

Always a showman, Trump’s latest spectacle is well timed. After all, burning things to the ground has been booming business as of late. The alt-right, seething with “replacement” grievances, descended on Charlottesville with tiki torches. Black Lives Matter protests often featured fireworks—not in the sky but on city streets, primarily with bonfires made of police cars and police precincts. And no pro-Hamas rally would be complete without desecrating American and Israeli flags—the new pistols at dawn for antisemites.

Actually, it’s these many hellish infernos that the Executive Order primarily has in mind. Yes, President Trump is wrapping himself in the American flag as a flame retardant, but he may be onto something, as well. He might not appreciate the legal hurdles he is facing, but those in his administration who drafted the Executive Order apparently do.

Yes, President Trump is wrapping himself in the American flag as a flame retardant, but he may be onto something, as well.

The order merely prioritizes enforcing laws that arise from flag-burning that are unrelated to expressive speech. The most obvious is arson, but also violent acts that threaten public safety, like “hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace.”

What may really be on the president’s mind here are the widespread campus unrests and public upheavals in support of Hamas. Non-citizens standing anywhere near a burning flag will and should have their visas and immigration benefits revoked.

Moreover, if the burning of a flag contributes to or accompanies the “incitement of imminent lawlessness,” “true threats,” or “fighting words”—none of which are protected under the First Amendment—then prosecutors should have a greater incentive to punish because flag-burning was also afoot.

The language of the Executive Order notes correctly that “flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”

That means if you are burning a flag while shouting “Globalize the Intifada!”, free speech guarantees will not save you. We know exactly what you mean, and therefore jailtime for arson, incitement, hate crimes, violent criminal mischief, disturbing the peace—and for foreign nationals, deportation—is in your immediate future.

In the Supreme Court’s flag-burning case, Chief Justice William Rehnquist wrote in dissent, “flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.”

Those who demand the right to burn the American flag are essentially saying: We have no interest penning a biting op-ed in the local paper. Engaging in civilized, mutually respectful debate is similarly out of the question. We come from the gutter where a thesaurus is impractical. We speak only through violent acts, hostile gestures, riled-up mobs, and maximal threats and intimidation. That’s how we convey our ideas.

With any luck the Supreme Court will take another look and conclude, not anymore.