Andrew Cohen teaches philosophy at the University of Wisconsin, Stevens Point.
A constitutional amendment that would forbid the desecration of American flags is again percolating in the nation’s capital. As of this writing, the immediate prospects for passage look bleak. But this amendment has a way of never fully going away. Many opponents of the measure trot out free speech arguments. And although concerns about free expression are important, these traditional arguments miss a more central political principle that the amendment and resulting laws against flag burning would jeopardize: property rights. The amendment would undermine key liberties for which the flag stands.
Arguments for Flag Desecration Laws
Those who uphold laws against flag desecration typically speak of the important values that the flag symbolizes. They claim that legally allowing flag burning is tantamount to rejecting the freedoms that the flag represents. They say it is vital that we express our respect for human freedom by institutionalizing penalties against those who would defile the national symbol.
Permitting flag burning, the amendment’s proponents continue, sends the wrong message to America’s youth, America’s voters, and observers abroad. When the young see protesters publicly burning a flag with impunity, they may believe that American freedoms are cheap. They may then think that the nation’s commitment to uphold those freedoms is fleeting. Permitting flag burning may also undermine a key basis for community among America’s voters. With protesters burning flags, voters may lose a vision of shared citizenship and be less committed to the American ideal. Flag burning is also supposedly a slap in the face to all Americans who suffered in wartime to secure freedoms for everyone. Lastly, foreign observers who see Americans burning their own flag may be less inclined to support America’s international policies aimed at securing freedom. Advocates fear that foreigners will think: if Americans cannot take their own freedoms seriously, then we need not take seriously the moral reasoning they present to the world.
The Free Speech Argument Against Flag Desecration Laws
People who burn flags intend to send a message by doing so. This is what makes flag burning a form of expression. Some flag burners take offense at various American foreign policy measures. (Recall the nightly news broadcasts last summer showing Sudanese burning American flags in Khartoum after the United States bombed what it deemed a suspicious pharmaceutical factory.) Some individuals may burn flags as a way of saying America is not true to its own values. Others simply despise American ideals and set the flag aflame. In any case, people who burn flags do so deliberately in order to send a public message of protest.
The First Amendment to the Constitution reads, “Congress shall make no law . . . abridging the freedom of speech.” Constitutional scholars and legal theorists have long argued over the meaning of this amendment. There is, however, a rough consensus on two ideas: (1) the amendment protects peaceful expression, popular or unpopular, but (2) the Framers clearly did not intend for it to license any and all forms of expression. Consequently, room has been made for laws against libel, slander, and obscenity. Contrary to hyperbolic op-eds railing against flaming protests, burning a flag is not “obscene.” At worst, it is despicable. At best, it is a valuable form of political speech.
The First Amendment protects freedom of speech, which in turn protects the liberty to say wrong-headed, bigoted, stupid, vicious things. Such protection is crucial; otherwise freedom of speech would reduce to the empty freedom to say only the right, the true, and the good. That would present a disturbing practical difficulty: some bureaucrat would have to decide what is permissible speech, because in today’s pluralistic society, there is little consensus on many aspects of the right, the true, and the good. Freedom of speech, however, is the freedom to say what one wishes without having to solicit the permission of anyone first.
Freedom of speech guarantees a healthy, open marketplace of ideas. More fundamentally, it includes the freedom to say things that others might not like. Those who are offended should respond with reasoned arguments of their own and not by passing a law. If individuals were only free to say things that others liked, public and private discussions would be banal, stilted, and oppressed. A law against flag burning forbids a form of expression simply because others do not like the message. Government exists, however, to protect individual rights. It should not protect citizens from being offended. We can stipulate that many acts of flag burning are offensive. Simply being offensive, however, does not violate individual rights.
The Property Rights Argument Against Flag Burning
The free speech argument against the proposed amendment is powerful; people must be free to offend if free speech is to count for anything. There is, however, one time when flag burning should be against the law: when it’s someone else’s flag.
Suppose you own a flag. Suppose that Chris takes your flag without your consent and sets it on fire in the public square. What Chris has done ought to be forbidden (and punished) not because he burned a flag, but because he burned your flag. Chris ought to be held accountable just as if he had taken a sledgehammer to your concrete garden gnomes without your permission. He destroyed your property.
People who debate the flag issue often lose sight of this important fact: you cannot burn “the American flag” because there is no such thing as “the American flag.” There are only flags. The “American flag” is an idea that cannot be burned. A particular flag, however, can be burned. Whether it is permissible to do so turns on whose flag it is.
Being a material object, a flag usually comes into the world attached to someone as property. A law against flag burning would forbid you from disposing of your property as you see fit. Let us assume that burning your flag does not pose a threat to public safety (that is, you don’t ignite and toss it into an unsuspecting crowd). In that case, when you burn your flag, your actions are not importantly different from taking your paper and your ink to print up pamphlets that say anything (or even nothing) at all. The pamphlets are your property, and so too is your flag. Passers-by can take your message or leave it.
To forbid flag burning is to forbid you from disposing of your property in ways that offend others. But property rights protect freedom of action for which one need not solicit the permission of others. A right to your flag guarantees a right to burn it, stomp on it, spit on it, or turn it into underwear if you so choose. Your flag is your property. If someone does not like what you do with your property, he should not lock you up; he should persuade you to change your ways or he should have nothing to do with you. Consider the absurdity of having rights to use your property only in ways others find acceptable.
Permissible Flag Burning and Some Problems
When a flag becomes old and tattered, there is a prescribed way to dispose of it. Part of the process involves burning it. If flag burning were forbidden, presumably it would not be just any flag burning that would be illegal. It would only be flag-burning-while-thinking-nasty-thoughts-about-the-flag. If persons are to be punished not for what they do, but for what they think, we will have marched a long way from the freedoms on which this nation was founded, and headed dangerously closer to tyranny.
There are further difficulties with laws against flag burning. We all know what an American flag is supposed to look like. It has 50 stars and 13 stripes, all arranged in a certain pattern. Suppose, however, you were to sew a piece of fabric that looked just like a current American flag, except that it had 49 stars or 50 six-sided stars (instead of five-sided stars), or white stripes on the very top and very bottom (instead of red), or a blue field that was only six stripes high (instead of seven). Strictly speaking, those pieces of fabric would not be American flags. They would be imperfect approximations of American flags. Would a law against flag burning forbid the desecration of any piece of fabric that even looked like an American flag? What if one takes a big piece of white paper and writes in big boldface letters, “This is an American Flag,” and sets it on fire? Perhaps the courts would rule that any act intended to make onlookers believe that one was burning an American flag would be covered by the amendment. Once again, however, the government would be getting into the business of punishing people for having bad thoughts. This is not the mark of a government in a free society.
What the Flag Means
The flag is a symbol of American values such as self-determination and freedom from oppression. Throughout our history, members of the armed services suffered on behalf of freedom, not on behalf of a piece of fabric. They did not put their lives on the line so that busybodies and bureaucrats could tell us what we can or cannot say and what we can or cannot do with our property.
No doubt, flag burners are often quite vicious, detestable persons whose contempt for American values deserves our contempt. But the law should not forbid all vicious conduct. We can privately refuse to have anything to do with such persons. We can hold them up to public scorn. We might display our patriotism to counter the flag-burning demonstration. Such acts would help solidify the shared citizenship that flag-burning amendment advocates so often invoke. Those informal responses would also help send the message that some matters are best left to private individuals and the free choices they make. Those who take freedom seriously are civilized enough to put flag burners in their place without beating them up or locking them up.
Supporters of laws to punish people who destroy a flag betray their belief that the values the flag symbolizes cannot prevail on their own merits. They seem to think that freedom demands government-mandated respect. But American ideals are sturdy enough to await voluntary respect. Let us repudiate flag burners and persuade (not force) individuals to respect the flag. We must not, however, cheapen the freedoms the flag represents with an amendment that would restrict individual rights.