A Perhaps-Incongruous (and Belated) Post on Flag Burning—in Honor of Flag Day
By Ken K. Gourdin
I’m a few days late for Flag Day. With apologies to the rare visitor who frequents this corner of Cyberspace, please forgive my tardiness: I hope you subscribe to the old maxim, “Better late than never.”
As a sometime journalist and somewhat-more-frequent Blogger, I’m a big fan of the First Amendment to the United States Constitution. I like the freedom to expound on nearly whatever subject I choose, and to say almost whatever I want, about most anything I want, without undue government interference.
“But Ken,” you might say. “You said in your introduction to the Blog that writing for you is like breathing for everyone: just as we all must breathe to live, you must write. And the government isn’t any more likely to interfere with your right to write [yes, I like putting homophones close to one another!] than it is likely interfere with anyone’s right to breathe.”
Perhaps you’re right; perhaps my explicit proclamation of how much I cherish my right to write isn’t any more necessary than would be an explicit proclamation of how much one cherishes the right to breathe: for most of us (and under most circumstances) it’s simply a given. On the other hand, perhaps we ought not take either right so much for granted.
It’s not just breathing that’s a big deal. Everyone who’s ever been born on this planet has taken at least one breath. But as the poet Emma Lazarus points out in her wonderful invitation inscribed on the Statue of Liberty, it’s breathing free that counts: “Give me your tired, your poor; your huddled masses yearning to breathe free!” (Emphasis mine.) While billions have breathed the air on this planet, comparatively few of them have breathed such air free.1
Nor, with all due respect, do I believe I can take my right to write as much for granted as you might expect. Perhaps anyone who thinks that the government cannot (and will not) interfere with the supposed iron-clad guarantee of First Amendment freedoms ought to ask alleged “unindicted co-conspirator and flight risk” James Rosen of Fox News2; for that matter, he ought to ask the Associated Press reporters whose phone records the government pawed through.3
“OK, Ken,” you might say, “We get it. You’re a big fan of the First Amendment, and you don’t think the freedoms it supposedly guarantees can be taken for granted. Fair enough. But what does any of this have to do with Flag Day?” Let me explain.
The first thing you need to understand is that even though I’m relatively young, I’m still old-fashioned. I get a lump in my throat every time I hear America The Beautiful, The Star Spangled Banner, or Lee Greenwood’s Proud to Be An American. And every Independence Day at the local Bit-n-Spur Rodeo, I tear up when Johnny Cash’s recitation of the poem Ragged Old Flag4 is played. Not only do I reverence the freedoms the flag represents; even though I know that in the end it’s just a piece of cloth, I reverence the flag itself. I would never dream purposely of desecrating it.
But having said this, my thoughts now turn to the 1989 United States Supreme Court case Texas v. Johnson5, in which the Court struck down a statute prohibiting flag desecration and found that burning a United States flag, as distasteful as the prospect is to so many, is expressive conduct which is protected by the First Amendment.
Some might say that if we were to travel far enough down the path opened in Johnson, eventually every potential form of conduct—no matter how many people would find such conduct reprehensible—could be found to have an expressive element, and, thus, by the reasoning the Court employed in Johnson, such conduct should be protected under the First Amendment.
But this is where I return to where I began. I admit, because I’m old fashioned, a big part of me disagrees with the Court’s holding in Johnson. But as much as I also hate to admit it, I think the Court got it right.
Whatever my fears might be that the hypothetical scenario of an endlessly-broad definition of expressive conduct may eventually prove to be prophetic, and however much I reverence not only what it represents but the flag itself, I can’t bring myself to say, “First Amendment protection for me, but not for thee.” I can’t bring myself to say, “Under the First Amendment, I have a right to write, but you don’t have a right to express yourself because you chose to do so in a manner—burning the flag—with which I (and many others) disagree.”
While I wouldn’t stop you from burning the flag, I might try to persuade you that there are more productive ways of airing (and of seeking to resolve) your grievances. I might try to convince you that you should try those methods first. Convince me of the justness of your cause and of the earnestness of your endeavor, and I might even advocate for you myself.
Happy Flag Day, everyone, and long live the First Amendment!
1 Emma Lazarus (1883), “The New Coloossus,” accessed on line at the following address on June 25, 2013: http://xroads.virginia.edu/~cap/liberty/lazaruspoem.html
2 Ann E. Marimow (May 19, 2013), “A rare peek into a Justice Department leak probe,” The Washington Post, accessed on line at the following address on June 25, 2013: http://www.articles.washingtonpost.com/2013-05-19/local/39376688_1_press-freedom-justice-department-records
3 Mark Sherman (May13, 2013), “Gov[ernment] obtains wide AP phone records in probe,” accessed on line at the following address on June 25, 2013: http://www.bigstory.ap.org/article/govt-obtains-wide-ap-phone-records-probe
4 Johnny Cash (1974), “Ragged Old Flag,” Columbia Records, lyrics accessed on line at the following address on June 25, 2013: http://www.metrolyrics.com/ragged-old-flag-lyrics-johnny-cash.html
5 See Texas v. Johnson, 491 U.S. 397 (1989), available on line at the following address, last accessed June 25, 2013: http://www.caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=397