May 26, 2019


Burn a tattered American flag as part of its proper disposal, with respect and dignity, and no law-enforcement officials will come knocking. But burn one out of anger at the United States or a president or a political party and a proposed constitutional anti-desecration amendment would find your action illegal. That’s because the flag-burning ban is a ban on the expression of political thought – objectionable, insulting, but almost always political. People don’t burn flags because they’re mad about traffic delays.

Politics is what lay behind Johnson v. Texas, the Supreme Court case in 1989 that has so bothered Congress since. Gregory Lee Johnson was a protestor at the 1984 Republican National Convention. He was angry about the nuclear-war policies of the Republican Party and he burned a flag in protest. No one was hurt at the event; there were no fistfights or any other compelling reason for the government to show special interest in stopping this sort of expression. The court found, 5-4, the Texas statute that criminalized the desecration of the American flag violated the First Amendment.

The Senate will soon vote on an anti-desecration amendment it has been trying for years to pass. It stands a good chance this time, and the idea of a ban is certainly popular generally – making this outrageous act precisely the kind of expression that needs protection. Free speech should never be a popularity contest.

Both of Maine’s senators support the ban. Sen. Olympia Snowe argues the flag should be protected “because our most beloved emblem of the world’s greatest democracy, our American flag is not just another piece of cloth. … to those who support the right to desecrate our flag, let me simply say, you want to protest? Write letters to the editor. Organize. Leaflet. March. Chant. Speak out. Petition. Do all of these things – but do not burn our flag.”

None of these suggestions (does anyone still leaflet?) is as powerful or extreme as burning a flag, of course. But if the very same ideas could be expressed through the means suggested by Sen. Snowe then the ban really is just about the piece of cloth and not its symbolism. They aren’t the same, evidenced by the attention the idea of flag burning receives.

Sen. Susan Collins says the flag “is a symbol of strength and reassurance, and, given the unique importance of the flag to the American people, I believe that government has a legitimate interest in preventing its desecration.” The uniqueness of the symbolic value of the flag is a fair argument, but many objects hold special symbolic value – say, copies of the Declaration of Independence, the Emancipation Proclamation, the Bible, pictures of American soldiers – that we wouldn’t want to see burned. Others may feel differently about the symbolic value of these items or even what they symbolize. Why would government rank them – flag qualifies for protection; the others don’t?

Eventually, this time or some other, both houses of Congress will pass this amendment and it will find support among states. The world won’t come to an end; the nation won’t suddenly slip down the slope of ever-greater restricted speech. But one unusual form of expression will be banned, one kind of protest will be gone and one small freedom for which the flag is revered will be wiped away.

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