- - Wednesday, June 19, 2019

There are eternal debates about issues that, while seeming adjudicated and settled, nonetheless bubble up every few years: Should Pete Rose be in the baseball Hall of Fame? Who killed John F. Kennedy? Should there be a constitutional amendment proscribing the burning of the American flag?

The flag question bubbled up again the other day when President Trump announced that he supports the idea of mayhem for flag-burners. “All in for Sen. Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag,” the president tweeted. “A no-brainer!” Sen. Daines, a Republican of Montana, introduced legislation on Flag Day to restore “Congress’s constitutional authority to ban the desecration of the United States flag.”

The president has been particularly vehement on the issue for years. “Nobody should be allowed to burn the American flag — if they do, there must be consequences,” he tweeted in 2016, “perhaps loss of citizenship, or a year in jail!”



Flag burning was popular in certain neighborhoods in the ‘60s, that decade when and where so many bad and silly things originated. By 1989, all but two of the states had some kind of law on the books banning flag burning. But then came Texas v. Johnson in the U.S. Supreme Court, and down they all went. The high court, examining the criminal conviction of a man for burning a flag at the Republican National Convention in 1984 in Dallas, found that such laws violated the First Amendment to the U.S. Constitution, which guarantees a right to free speech. Among those voting to eliminate flag-burning laws was the late Antonin Scalia, patron saint of conservative jurists and other devotees of the Constitution.

The decision was clearly the right one. The urge to slap a flag-burner is also clearly understandable; flag-burning is silly, immature and plainly idiotic, and to most Americans downright offensive, like loud rock music. But the point of free speech protections is to protect precisely that speech that many are offended by. Free speech just for congenial speech is no free speech guarantee at all. Supreme Court Justice Brett Kavanaugh has indicated that he backs the 1989 decision. So, too, has John Roberts, the chief justice who was appointed to the court by President George W. Bush.

Calls for bans on flag burning are usually exercises in pandering by cynical politicians who should (and usually do) know better. Hillary Clinton, a lawyer representing her adoptive state of New York in the U.S. Senate, co-sponsored the Flag Protection Act of 2005. The law would have imposed a year in prison and a fine of up to $100,000 for “destroying or damaging a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace; (2) intentionally threatening or intimidating any person, or group of persons, by burning a U.S. flag; or (3) stealing or knowingly converting the use of a U.S. flag belonging to the United States, or belonging to another person on U.S. lands, and intentionally destroying or damaging that flag.” Mrs. Clinton was looking ahead to the 2008 presidential race and looking for an opportunity to prove her patriotic bona fides. The proposed law was a law, not a constitutional amendment, and she knew — the man she lived with had been a lecturer in constitutional law at the University of Arkansas — that if her bill had become law it would have been invalidated by the Supreme Court.

Sen. Daines’ bill is at least proposed as an amendment, but with a presidential blessing or not, has been exiled to the island of lost luggage and failed legislation (the island is officially called a “committee”). Justice Scalia said it best, as he often did: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” The only king we have is the Constitution, which protects the right of Americans to say what they please, even when their speech reveals them to be idiots, and not even useful idiots at that.

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