In the advertising world there is an old saying that there are times when you take a throw and “get the flagpole to see who greetes.” That expression came up in me on Wednesday when President Donald Trump signed an order to punish the flag. The president may hope that the Supreme Court could greet and return, long -term precedent and explains that flag burning is protected as a protected speech under the first amendment. If so, he is probably disappointed. The proposed persecutions would be unconstitutional and, apart from an unlikely large reversal of previously precedent by the court, flag burning will remain a protected form of freedom of expression.
The Supreme Court has repeatedly and correctly stated that the flag disability was protected in cases such as Texas v. Johnson (1989) and United States v. Eichman (1990). The order aims to avoid these cases by concentrating on actions that violate “applicable, content-neutral laws, while causing damage that is not related to expression, consistent with the first amendment.” If such violations take place, such as burning material in public countries or buildings, federal prosecutors would “prioritize the enforcement of … criminal and civil laws” such as “destruction of real estate laws” or “open burning restrictions”.
The problem is that, although the law is neutral, the improvement of the punishment with a year in prison is not. The entire point of the order is that it is based on content and is therefore unconstitutional.
The order makes clear the criteria-based criteria by explaining the flag burning “uniquely offensive and provocative” of “contempt, hostility and violence against our nation-the clearest possible expression of opposition to the political union that retains our rights, freedom and security”.
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The test of the principles of free speech is your willingness to defend speech that you find offensive or grotesque. For most of us there are few deeds more offensive than burning the American flag. That is precisely the reason why extremists who use symbols to air their anger.
That is the line held by the Supreme Court, also by conservative icons such as Justice Antonin Scalia. Scalia was the fifth mood in Johnson’s decision that burned the flag in Texas. The majority of opinion, written by William Brennan Justice, stated: “If a foundation principle underlies the first amendment, it is that the government cannot prohibit the expression of an idea, simply because society itself finds the idea itself offensive or unpleasant.”
Despite objections from many, Scalia later voted against a federal law that forbade the flag burning in Eichman.
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Scalia continued to defend his votes in public comments. He emphasized: “If it was up to me, I would put every sandal-bearing, filthy cooked weird that burns the American flag in prison. But I am not a king.”
File – Supreme Court Justice Antonin Scalia testifies before a subcommittee of commercial and administrative rights of a Judiciary house on Capitol Hill in Washington on 20 May 2010. (Reuters)
He added later:
“Yes, if I was king, I would not allow people to burn the American flag. However, we have a first amendment, which says that the right of free expression will not be shortened. And it is particularly aimed at speech that is critical of the government. I mean, that was the most important kind of speech that Tirants would try to suppress.”
Burning the flag is a form of expression. Speech does not only mean written or oral words. It can be Semaphor. Burning a flag is a symbol that expresses an idea – “I hate the government,” or “the government is unjust,” whatever. ‘
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Conservatives have long been opposed to falsely claimed “neutral” laws that were aimed at certain views. In McCullen v. Coakley (2014), for example, the court considered such a challenge for a Massachusetts law that founded a 35-feet buffer zone around abortion clinics that retained speech activities.
The court found unanimously that it still violated the Constitution. In particular, Scalia only agrees in the judgment, while he did not agree with the reasoning of supreme judge John Roberts in the majority. Scalia considered the law based on content and thought it should have been brought down under the highest burden of strict control.
The Supreme Court has been photographed, February 28, 2024 in Washington. (AP Photo/Jacquelyn Martin, file)
Consider the implications of laws that improve persecution and punishment for selective speech. A liberal president could seek improvements for views that are considered hate speech or disinformation. That is indeed precisely the reasons used in other countries to selectively prosecute certain speech as “provocative”, “offensive” or feeding violence.
In Rav v. City of St. Paul (1992), the court settled a regulation that focused on combating words that made people angry on the basis of “race, color, faith, religion or gender”, as well as specific Nazi symbols.
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The majority of his opinion, written by Scalia and accompanied by Chief Justice William Rehnquist and Justices Anthony Kennedy, David Souter and Clarence Thomas, ruled that “the first amendment St. Paul did not allow special prohibitions to those speakers who express those views of non -killings.”
File – in this 10 August 1993, file photo, Supreme Court Justice Ruth Bader Ginsburg takes the court of supreme judge William Rehnquist, on the right, during a ceremony in the eastern room of the White House in Washington. Ginsburg’s husband Martin holds the Bible and President Bill Clinton looks in the left.
As I discuss in my book, “the undisputable right: free speech in an age of rage”, this kind of persecution has been swept through Europe, where free expression is in free fall. Europeans surrendered to the desire to focus on certain views and speech, a movement that quickly snowed in massive censorship and criminalization of speech. This included arresting people who pray to themselves in the neighborhood of abortion clinics and any protests that were offensive for different groups.
Flag burners can still be prosecuted for burning material on streets or public ownership. However, those laws must be written neutral and used neutral. Otherwise Trump and others can look for a constitutional amendment to create an exception for burning flags under the first amendment.
This is never an easy struggle for the defenders of freedom of expression. Nobody enjoys being accused of defending flag burners. Free speech, however, often requires that we fight for the rights of those we despise or views we regret. We do not need the first amendment to protect the popular speech.
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Of course the new order is a fight that Trump probably believes that he cannot lose. Even if he loses in court, he is seen as fighting a practice that remains uniform unpopular with American voters. However, we must concentrate on defending the rights that define us as Americans.
Free speech is precisely the right that distinguishes us from even close allies – the indispensable and typical American law. It would be a tragic irony to protect the symbol of our nation by destroying the core rights that symbolizes.
This column was first published on the author’s blog: Res IPSA LOQUITUR – The thing itself speaks
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