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Op-Ed: Yes It Is Perfectly Legal To Burn The American Flag, No It Should Not Be Made Illegal

November 30, 2016

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President-elect Trump’s latest tweet storm (well latest as of this writing, you never really know when the next one is coming) has Internet users at each other’s collective throats.

This time Trump made comments regarding punishing American citizens for the burning of the American flag.

“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Trump tweeted.

I’ll be honest, I doubt Trump really intends to punish people for burning the flag. Having watched him campaign and use social media over the past year it seems that his latest comments are probably meant to take media attention off of Jill Stein’s recount campaign or questions over conflicts of interest with regard to his international business arrangements – I could also be entirely wrong.

Assuming I am wrong, and that Trump truly intends to punish people for burning the flag then we should regard this as an incredibly dangerous statement coming from the man who will be the leader of the free world in less than 2 months.

First of all, for the government to punish an American citizen for burning the flag would be undeniably, without question unconstitutional.

To save myself the time needed for a full rewrite, here’s CNN’s copy on past attempts to ban flag burning.

“The Supreme Court has twice affirmed the right to desecrate the American flag as a form of free speech — a historically contentious issue — in cases before the high court in 1989 and 1990.

In the 1989 case ‘Texas v. Johnson,’ the Supreme Court ruled 5-4 that flag burning was a form of “symbolic speech” protected by the First Amendment. The ruling came after an appeal from Gregory Johnson, who had been convicted by a Texas court of violating a state law that prohibited the ‘desecration of a venerated object’ such as the US flag.

The following year, in ‘United states v. Eichman,’ the top court again affirmed the right to burn the flag when it ruled 5-4 that the Flag Protection Act of 1989 — passed by Congress in response to the Johnson decision — was unconstitutional.”

Of course, that apparently didn’t matter to Trump transition spokesman Jason Miller.

“Flag burning should be illegal,” Miller told CNN’s Chris Cuomo. “The President-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”

And the first amendment apparently doesn’t mean a whole lot to the Facebook patriots who have spent the day educating others on the limitations that (they believe) ought to be applied to the First Amendment.

“Burning a flag is not free speech- it’s a disgrace to our country. Every action deserves a reaction- this instance should be prison! Maybe there you can educate oneself on the representation of our American flag!”

Burning a flag is in fact free speech. The Supreme Court has affirmed this twice. The First Amendment quite specifically says that Congress shall make no law abridging such freedom. These are not rights or freedoms that are given by man, they are rights that are we are endowed with by our creator – be it some deity, or just good old-fashioned mother nature – and are unalienable. Of course if you believe that this “action deserves a reaction” then you are free to react. You can stand next to me in the same public place and tell people why I am wrong for burning the flag, you can pen a strongly worded op/ed, or you can look the other way, but you can’t throw me in jail, fine me, or take away my citizenship. This isn’t North Korea.

“Thats nice of people that think it’s ok to burn the American flag after so many people died in War defending that flag for our freedom how American of you all you might not be in agreement with Trump but burning the American flag is wrong no matter who President Elect or President so yes there should be consequences atleast a fine”

Specific instances of service members dying to protect an actual flag from enemy attack aside, no one has ever died for a flag. When you serve in the military you are serving to support and defend the Constitution, to accomplish the mission as dictated by your chain of command, and to bring your fellow service members home safely. There is no mandate to protect the flag. In fact the flag derives all of its value from the freedoms that we in this country hold so dear. Thus, if we erode those freedoms for the sake of political correctness, or the protection of some sacred cow then our flag becomes a useless piece of cloth.

“It is illegal in a lot of countries it should be illegal here. If u love your country so much why disrespect the flag. In many countries even wearing the flag as a bra or pantie is illegal.”

Something being illegal in another country is a pretty weak litmus test against which to hold our own standards of liberty – after all we did fight a lengthy war against the British for the express purpose of doing things our own way. And by the way have you guys seen the way other countries function with regard to individual liberties? It’s absurd; there are places in the developed, western world where they are working to punish people for saying unpleasant things in Internet comment sections. We don’t want to be like them!

“there is actually a law that exists about desecrating the flag. and for all you out there who say its free speech, remember not all speech is protected and free speech is not absolute…”

There is no law that exists about desecrating the flag. Both the Supreme Court and the Bill of Rights explicitly protect this type of expression. To my knowledge the only forms of speech that are not protected by the First Amendment are libel and slander, and instances of ‘shouting fire in a crowded theater’ all of which are quite difficult to prove, and none applies to this situation…unless of course someone set fire to the flag in a crowded theater…

What I have found interesting on my own newsfeed is that many who advocate punishing flag burners, also support the right to fly the confederate flag (the most treasonous symbol in our nation’s history – tied not only to the civil war, but the murder of a U.S. president as well). Some of them tattoo this symbol of treason on their bodies, others fly it from their homes or plaster it on their cars – all of this because they see it as a source of cultural importance, while others see it as a symbol of hate. The right to fly the confederate flag, a swastika flag, a Boston Red Sox or New York Yankees flag depending on who you ask, an ISIS flag, or a flag with featuring a big picture of Osama Bin Laden driving over the World Trade Center in a monster truck shall not, and will not be infringed upon or abridged.

If the people in power in our country are allowed to decide what is and isn’t free speech then we’re headed to a place where none of our freedoms are safe. That’s why it’s an inalienable right. It’s not a right that can be given or taken away by man. What makes America great is that we can burn the flag without fear of government reprisal. It’s such an important right that Vietnam veterans have spoken out in defense of it.

Here’s the deal; free speech does not end where your hurt feelings begin. Over the past couple years we’ve seen an uptick in politically correct sensitivity on college campuses. Thanks to liberal college students our national conversation now includes frequent use of phrases like ‘trigger warning’ and ‘microaggression.’ In response we mocked them, and called them ‘special snowflakes’ or ‘the participation trophy generation.’ But right now, conservatives who wish to punish others for burning the flag are acting the exact same way. The statement being made by anyone who wishes to see flag burners punished is, “your right to criticize the government ends where my right to be offended begins.”

Of all people, Antonin Scalia has defended the right to torch Old Glory.

“If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government,” Scalia said. “That was the main kind of speech that tyrants would seek to suppress.”

As a U.S. Marine, OIF veteran, media professional, student of political science, and huge fan of Thomas Jefferson, I will leave you with this: burning the flag while perhaps distasteful, is perfectly legal and protected by the constitution. Were I to ever come across a group of people burning the flag I might look the other way, or I might approach them and say something along the lines of “I don’t agree with what you are doing, but I will defend to the death your right to do it.” Of course if our government were to ban flag burning altogether, I’d be right there next to them opening up the next bottle of lighter fluid, because without the right to burn it our flag is nothing more than a striped piece of cloth.

This contributor is a Marine veteran that has served in the Middle East. Due to the sensitive nature of his current job, he has requested to remain anonymous.