Friday August 23, 2013

Let's be perfectly clear here: Burning the flag of the United States of America in protest is considered free expression under the First Amendment of the U.S. Constitution. So ruled the U.S. Supreme Court in 1989 in Texas v. Johnson, in which the court stuck down a Texas law that prohibited "desecration of a venerated object."

Texas had argued that the state's interests in preserving the flag as a symbol of national unity were more important than Gregory Lee Johnson's right to symbolic speech. But an appeals court overturned a lower court's decision affirming the Texas law, ruling "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol ...."

In a 5-to-4 decision, the U.S. Supreme Court upheld the appeals court ruling, stating that though Johnson's protest wasn't verbal expression, it was "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."

Burning the flag is characterized as "expressive conduct" of an "overtly political nature (that) was both intentional and overwhelmingly apparent."

The court also rejected Texas' argument that burning a U.S. flag is punishable because it tends to incite "imminent lawless action.


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In his dissent, Justice William Rehnquist wrote that protection of the flag was legal because "Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have."

But in his concurring opinion, Justice Anthony Kennedy noted, in effect, that sometimes the court has to hold its nose over its distaste when affirming Constitutional rights that might result in actions that offend a majority, "... perhaps for fear of undermining a valued principle that dictates the decision."

The court's decision not only struck down the Texas law, but also invalidated similar laws in 47 other states.

In response, in 1989 the U.S. Congress passed the Flag Protection Act, which was also struck down a year later by the Supreme Court. The most recent attempt to pass a flag desecration act failed by one vote in the Senate in 2006.

While flag desecration is offensive to many, noted the court, "The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

According to Eugene Volokh, a professor of law at UCLA, the best historical evidence suggests arguments presented by proponents of flag desecration laws are flawed.

"The Framers fully understood ‘freedom of speech, or of the press' to include symbolic expression as well as verbal expression," wrote Volokh for the Wall Street Journal. "The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same."

In addition, noted Volokh, "Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's ‘right to speak, to write, or to publish their sentiments.'"

Now that that point is out of the way, let us also be perfectly clear that stealing a flag and then burning it is against the law because it is destruction of another's property.

And stealing a flag from a war memorial and burning it is not only illegal, but reprehensible and repugnant.

While investigators haven't yet officially concluded the vandalism at, and theft of the flag from, the Kyle Gilbert Memorial on Aug. 20 is linked to a flag that was found burned amidst the remnants of a Molotov cocktail on Williams Street that same day, it's not an unimaginable leap of logic to conclude that the flags are one and the same.

If that turns out to be the case and if the perpetrator is caught, he or she should be prosecuted to the full extent of the law, charges that might include vandalism, theft, unlawful mischief and igniting an incendiary device.

However, comments on social media are calling for more severe punishment, such as, believe or not, tying the perpetrator to the flagpole and burning him alive, breaking his legs, beating him up, stripping him of his citizenship and sending him to a less-tolerant nation with fewer freedoms, forcing him to enlist in the military or just plain taking him out in a field and shooting him.

While it is understandable that those who have fought, or lost loved ones who have fought, under the banner of the flag would be upset at the disrespect shown by whoever committed the criminal act of vandalizing the memorial, we should all step back from our initial reactions and take a deep breath.

If and when the perpetrator is caught, the legal system is well-positioned to mete out justice. We should let the system run its course. However, taking the law into our own hands and dishing out our own brand of punishment is unacceptable.

The Constitution, which guarantees the application of fair, equal and moral justice (an essential foundation on which this nation was established), is what our friends and family members fought and died for.

While, for many, the flag is the symbol of all that is good about the country and represents our history and the legacy of those who died protecting it, it is just that, a symbol.

But the Constitution is more than a symbol; it is a manifestation of a greater good, a nation built in response to tyranny on laws based on what is right and moral. We should respect and defend the Constitution first and foremost. And part of that Constitution guarantees free expression, whether we like or not the method of that free expression.

And, as one of the cooler heads on social media noted, "Due process is a foundation of our American democracy. Or shall we revert back to the 17th century form of justice where dissenters are burned at the stake? That doesn't seem like progress."