Sunday, December 04, 2016

Is flag burning protected speech?

The topic of flag burning has been in the news. Malcolm Pollack writes,
Donald Trump’s been tweeting about enforcing “consequences” for it, and the New York Times responded with a prim article (perhaps “snotty” would be a better adjective) chiding him for his ignorance of the Constitution. (The Times is completely unable to conceal its contempt for, and visceral loathing of, Mr. Trump, but of course that shouldn’t surprise anyone; it is of a piece with the general superiority their social class feels toward the traditional American nation and those who would empower it, and it is why they lost this election. Nor should the Times be surprised to see itself increasingly marginalized, and even reviled, as the tectonic plates upon which they have built their Cathedral continue to shake and shift.)

Pollack links to a post by Bill Vallecilla:
[T]he editorial board of The New York Times betrays a failure to grasp the distinction between the U. S. Constitution and Supreme Court rulings about it. In the 1989 case “Texas v. Johnson,” SCOTUS handed down a 5-4 ruling according to which flag burning was a form of speech protected by the First Amendment. Now if you read the amendment you will find no reference to flag burning. The subsumption of flag burning under protected speech required interpretation and argument and a vote among the justices. The 5-4 vote could easily have gone the other way, and arguably should have.

So Trump’s tweet, “Nobody should be allowed to burn the American flag . . . ,” does not show a lack of understanding of the Constitution. After all, SCOTUS rulings can be overturned. On a charitable interpretation, Trump was advocating an overturning of the 1989 and 1990 flag burning rulings.

Ought flag burning come under the rubric of protected speech? Logically prior question: Is it speech at all? What if I make some such rude gesture in your face as ‘giving you the finger.’ Is that speech? If it is, I would like to know what proposition it expresses. ‘Fuck you!’ does not express a proposition. Likewise for the corresponding gesture with the middle finger. And if some punk burns a flag, I would like to know what proposition the punk is expressing.

The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level. To have reasoned or even unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are. I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.

The First Amendment also mentions religion. If flag desecration counts as speech, what would not count as religion? Is godless communism a religion? Why not, if a majority of the black-robed ones say it is?

The Constitution is a magnificent document worthy of great respect and a sort of secular reverence, attitudes one might hesitate to cherish with respect to certain members of the Supreme Court.

Am I saying that there should be a flag burning amendment? No. Let the states decide what to do with the punks who desecrate the flag.

As for Hampshire College, pull their federal funding if they refuse to fly the flag. That should get their attention.
Malcolm agrees with Vallecilla that flag burning is not protected speech, but for different reasons.

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