Free Speech and Flag Burning

July 5th, 2009

Eugene Volokh stated in an article on July 3:

Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won’t get enough votes. Yet even if it doesn’t, one longstanding misunderstanding about the First Amendment is likely to live on. …

From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. “Speech” and “press” in the First Amendment don’t just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.

It’s always been clear that the First Amendment protects all manner of speech and expression, to include symbolic expression.  In fact, if that were not the accepted view, a constitutional amendment to ban flag burning would not be necessary.

There’s no doubt that some views are particularly odious, as are some people.  One of the best examples is Bill Ayers, shown in this photo expressing his disdain for America by trampling the American flag into the dirt.  People like Ayers are intelligent but ignorant, seemingly clueless that such behavior in many other countries would land him in jail, at the very least. 

I’m proud that in America people like Ayers, vile as he may be, can think, speak, write, and symbolically express himself in any way he wishes without fear of retribution from the state.

Amending the Constitution to ban flag burning is a mistake because it limits freedom of speech and expression and it opens the door to other restrictions in the future.  What will be next — amendments to outlaw certain kinds of organizations, such as neo-Nazi groups, Communist groups, and racist groups?  Prohibitions on speaking and writing if certain individuals or groups might be offended?  Once bans, prohibitions, and restrictions on speech and expression become tolerable, the big question will be, “Who gets to decide what’s banned?”

Freedom of speech must be nearly absolute, limited only in specific cases where others are endangered.  Current law and court precedents provide for those few limits.  Beyond that, freedom of speech and expression must accommodate the most offensive examples imaginable.

People can burn or trample the flag as much as they wish.  We’re strong enough as a nation to tolerate that kind of oafish behavior.


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7 Responses to “Free Speech and Flag Burning”



  1. Brian |

    The plain fact is that polite or popular speech doesn’t need to be protected. This proposed amendment is an ill-conceived idea.


  2. Tom |

    That’s an excellent way to put it, Brian. “Popular” is a key concept. What if sufficient majorities were to exist in Congress and the states, would amending the Constitution to ban flag burning be right, in the democratic sense that the majority should rule? Thomas Jefferson said,

    A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.


  3. Clarissa |

    Great post, Tom! It’s good to read something like that right after the 4th of July. This is one of the things that make Americaa great. The fact that the law allows for free expression actually makes the country stronger.


  4. Edisto Joe |

    You are correct and as much as it pains me to see various groups burn the flag in protest, they are fully protected under the Constitution to do so. Senator Mitch Mcconnell, the Republican minority leader in the Senate has taken heat on this time and time again. He is a strict constituionalist and votes no every time. Like the Marines say: “I may not agree with your position but I’ll fight to the death to defend your right to say it”!

    Good post.
    Edisto Joe
    The Edisto Joe Outlook


  5. Brian Bagent |

    That quote of Jefferson’s has been stamped on my brain. I always illustrate that point with this: Democracy is nothing more than two wolves and a sheep voting on what’s for dinner.

    At the end of the day, though, that is the way amendments are ratified, though it takes more than a simple majority to get them ratified. Depending on the route a proposed amendment takes, it would require at least a 2/3 majority consensus, and possibly as much as a 3/4 consensus. The logic behind this is that if the desire for change is that overwhelming, it should probably come to pass.

    Clarissa, I don’t know that it makes us stronger, but it would certainly injure us to have laws that forbade it. And it may seem like I’m splitting hairs, but “the law” doesn’t allow such behavior. To take the view that “the law” allows it is to look through the large end of the telescope. We are born free and sovereign. We may do whatever it is we please so long as we do not quantifiably injure someone else. Any number of things my offend our sensibilities, but those things don’t rise to the level of actual injury.

    In any case, we already have far to many such injurious amendments that ought to be repealed (14, 16, 17, 18 was repealed by 21, 23, 24, and 26), for they have no place in the governance of a free people. And as far as the 26th amendment, most 18 year olds are still children and shouldn’t be trusted to cast a ballot for the local dog catcher, let alone the President or congressmen.


  6. Tom |

    Brian, it’s good that supermajorities of various kinds are necessary to amend the Constitution. Over the years that has saved us from a lot of harmful and unnecessary amendments (although, as you say, maybe not enough!).

    But no matter what size the majority, there’s still a minority that disagrees and may be injured by the will of the majority.


  7. Brian |

    Tom, absoultely tue, and our founders agonized over this. But at some point, a super-majority has to be trusted.

    Ultimately, the best defense against a tyranny of the majority is a good, classical liberal education. Unfortunately, kids don’t get a classical liberal education any more, and haven’t for years. I had to discover Bastiat and that crowd on my own, and I’m 40. Even my parents (71 and 68) haven’t heard of most of these guys, and Dad’s a retired PhD. I’d bet that most college-educated people of the 18th century could cite chapter and verse of Bastiat, de Montesquiue, et al.


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