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OPINION: No, Flag Desecration Should Not Be Outlawed

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If you want to start a fierce debate among a group of conservatives, bring up flag burning. Odds are you’ll find a couple of people who disagree on the subject.

Flag desecration has always been a sensitive issue, with the practice previously being banned in several states and localities. Laws barring the practice were finally deemed unconstitutional in the 1989 Texas v. Johnson Supreme Court decision. 

Since then, there have been several attempts to subvert the Supreme Court’s ruling. 

The Flag Protection Act of 1989, for example, was the first attempt by political actors to undermine the Supreme Court’s decision. The law, which banned flag desecration, was unsurprisingly struck down as unconstitutional by the court system. 

Despite a lack of success, attempts at banning flag desecration continue well into the present, with President Trump, a long-standing supporter of punishing flag burners, endorsing policy which would outlaw the practice, calling it a “no brainer.”

The president is right about one thing on this topic: it is a no-brainer for liberty-minded, freedom-loving Americans, but not necessarily in the way he thinks.

I know that among many on the right, this is a rather unpopular opinion. We pride ourselves as conservatives — not just on the values of liberty, individual freedom, and personal responsibility, but on patriotism and loyalty to the American ideal. 

That is why when we see the dregs of society take a flame to the American flag, carelessly disregarding what it represents in order to make some misguided or immoral statement, our blood boils. We get emotional, angry. We wonder how someone could possibly do such a thing. How could they hate the best, most free nation to ever exist in human history?

And then, in that anger, we betray our own proclivity toward freedom of speech. Some among us try to ban the desecration of the flag, while others simply stay silent.

Yes, the act is disrespectful. Yes, it is gross, immoral, unpatriotic; the list goes on. But the loathsome nature of speech has never before justified the banning of said speech.

In America, you can burn Bibles, protest the funerals of soldiers who have fallen in the line of duty, and express your hatred for anyone in any group in the grossest, most vile way one sees fit. And yet, while all of these are despicable, evil ways to utilize our liberties, it isn’t where many on the right draw the legal line.

Ask yourself, why is that? Why should nearly everything but flag burning be legally permissible?

In large part, it’s because many view burning Old Glory as the ultimate act of apostasy; a total renunciation of America and everything it stands for, and the complete opposite of patriotism. But, as Andrew Donaldson points out regarding the subject, using government force to prevent unpatriotic dissent is itself unpatriotic:

Making patriotism a state pseudo-religion where all must observe the rituals and dogmas is just as wrong as any other state sanctioned and enforced faith, and against all our nation’s founding principles. Cynically decorating tyranny in star-spangled bunting, forcing people into compliance, while simultaneously citing the very symbols of their freedom not to, is an astonishing hypocrisy. Forcing someone to fake heartfelt respect is not gaining the enforcer the respect they seek; only the hatred of the forced.

Perhaps certain elements of American society seek to ban flag desecration because freedom of speech, as John Stuart Mill put it, has become a dead dogma. 

Many of us seem to have forgotten why freedom of speech, in all its forms, is so important, and why it is valued so highly. And while some reading this may shake their head in disagreement, the fact that the burning of a flag — granted, a sacred symbol worthy of respect, but a piece of cloth nonetheless — has become such a ubiquitous debate proves as much.

It’s also why so many have fallen into the camp that outlawing it is such a good idea. 

The U.S. Constitution is based on Lockean Natural Rights theory, which purports that in a state of nature, or a state of existence lacking a government, we maintain inalienable rights bestowed upon us by a Divine Creator— rights that are incumbent upon humans merely because they draw breath. These rights consist, broadly, of life, liberty, and property.

In essence, the Constitution is not a provider of rights; rather it is meant to outline the rights government is obliged to protect under the American social contract, in adherence to natural rights theory.

So while, yes, adding a constitutional amendment to ban flag burning would technically be legal and eliminate any legal challenges to the government forcing its will upon citizens, is that not still an attack on the basis of the First Amendment?

The Daily Wire's Michael Knowles tried to argue this week that no, it wouldn’t, as the case for banning desecrations of the flag is unique:

The chief issue with this is that hundreds, maybe thousands, of flags have been burned in protest over the nation’s history — many in direct response to laws banning flag burning. And yet, I’m still thinking. You’re still thinking. Because despite the vulgarity of a thought, of a word, it’s just that — a thought or a word.

Only violence can stop thought. Violence requires force, and simply desecrating a flag does not meet those parameters, nor does its destruction mean an end to the American ideal, or anything of the sort.

The American flag is sacred because it can weather even the hardest cultural storms. Its meaning transcends the physical form it currently holds and persists even when that form is destroyed.

The late Justice Scalia, who ruled that flag burning is protected by the First Amendment, put it perfectly in a 2015 speech: “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.”

America is not a land of kings. And thus, there is no reason to act like one.

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