I don’t think anyone would deny that the United States enjoys more freedom than any nation on Earth, more than any nation that has ever existed. Our freedoms are enshrined in our Constitution and the various Amendments thereto, particularly the first ten Amendments which we collectively refer to as the Bill of Rights.
Amendment One guarantees us five things: freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government when we think they should be doing something they’re not, or when we think they’re doing something they shouldn’t.
As we discussed in commentary number four of this series, our courts and legislatures have used a variety of rationales over the past seventy years to restrict the free exercise of the Christian religion. Conversely, during that same time they have jealously guarded the sanctity of speech and of the press. When the New York Times published top-secret war plans during both the Vietnam and Iraq wars, the courts said the Times was just exercising its freedom of the press.
When Vietnam War protestors burned U.S. flags in the ‘Sixties and ‘Seventies, the courts said it was permitted as freedom of speech. And today, in mosques all over America, radical Islamic clerics are calling for the violent overthrow of the U.S. government, and the courts say it’s legal for them to do so because the Constitution guarantees them freedom of speech.
Now, let me be clear on this. There are people in every nation of the world who don’t like the United States for various reasons. If those people want to speak critically of us, that’s okay. If they want to call for our destruction, that’s okay, too.
As incomprehensible as I find it, I know there are American citizens, people born and raised in this country, who also think we’re an arrogant, overbearing, imperialistic nation. If those people want to move to some foreign country they think is better, then from that distant shore call for our destruction, that is their right.
But for anyone—citizen, immigrant, or illegal alien—to stand on American soil and use the freedoms and protections granted them by the U.S. Constitution to call for the violent overthrow of the nation that Constitution established, is not acceptable. It is nothing less than an act of treason.
In the wake of several recent flag burnings, a high-school teacher stomping on the flag during his class, and a small college in Massachusetts refusing to fly the flag, saying it was “a symbol of hate,” President-elect Trump has advocated for a law that would make it a criminal act to burn or otherwise deface the U.S. flag. He has proposed a penalty of one year in prison and possibly loss of citizenship.
On the other side of the issue are two Supreme Court rulings in 1969 and 1989 that said burning the flag was a form of speech, and thus was protected by the First Amendment.
I would argue that striking a match and setting fire to something isn’t “speech” of any kind. It may be expressing an opinion (that you don’t like the object being burned), but the First Amendment doesn’t cover opinions. But let’s leave that discussion for another day.
So the highest court in the land has ruled that burning a U.S. flag (or otherwise defacing it) is a form of Freedom of Speech, and is therefore inviolable.
But wait—we’ve already put limits on freedom of speech, haven’t we? It’s illegal to say something about someone that you know is untrue. That’s called slander. If you put it in writing it’s called liable.
It’s illegal to say or write something intended to cheat someone out of money or property. That’s called fraud.
It’s illegal to shout “Fire!” in a crowded theater, or take any other action that could reasonably be expected to cause panic, injury, and possibly death. That’s called public endangerment.
So could we create a body of laws that would protect our national security and our national heritage? Perhaps, but they would have to be very specific laws. They would have to identify exactly what actions are prohibited. I would start with:
- The publication in a public forum (such as the NY Times) of any document classified as confidential, secret or top secret by the U.S. government.
- Advocating, either in speech or in writing, the violent overthrow of any U.S. governmental body—local, state, or national.
- Burning or otherwise defacing the U.S. flag, or breaking any of the rules for its display, such as flying the flag of another nation above it.
- Prohibiting or otherwise restricting the recitation of the Pledge of Allegiance by any individual or group of individuals in any venue.
What’s that? I heard someone say, “Wait a minute. Those things you cited earlier—slander, liable, fraud, and public endangerment—all have victims. Who is the victim if someone burns a flag?”
The answer is…we all are. For 213 years (1776 to 1989) the United States stood not just as a bastion of freedom and liberty but as a beacon of opportunity. It was the only nation in the world where one could rise from poverty to riches, where the child of a farmer or factory worker could become a governor, a senator, or even the President of the United States. For 213 years we attended parades and sporting events and high school graduations where we sang the American National Anthem and pledged allegiance to the American flag.
That flag is the symbol of America and of everything America stands for, whether it appears on the flagpole of an American embassy in a foreign country, on a ship sailing on the open sea, or on the sleeve of an athlete competing in the Olympics. To burn it, deface it, or disrespect it in any way is nothing less than an act or treason. It should be treated as such.