Op Ed: Flag Burning is Protected Under the First Amendment.

By Bill Britton

At his Tulsa rally, President Trump declared that burning the American flag should result in a one-year jail term for the perpetrator. (See: https://www.businessinsider.com/trump-people-who-burn-an-american-flag-should-go-to-jail-for-a-year-2020-6) The US Supreme Court, however, ruled in 1989 that burning an American flag is constitutionally protected speech under the First Amendment.

At first glance, transforming flag desecration from an act of protestation into one of criminality seems harmless enough, since those who commit this act are at times imbued with political outlooks at odds with many in mainstream America.

And although watching the national symbol burn on the streets of some foreign city distresses most Americans, to see this done on the streets of an American city, by an American, can elevate this distress to a level of venomous anger. The polls reflect this. The great majority of all Americans are in favor of an amendment to prohibit, and thus criminalize, flag desecration.

Several processes are at work when flames consume a symbol revered from childhood on. Woven into its fabric are memories commonly held such as reciting the Pledge of Allegiance in grade school.

Later, elements that are more complex reinforce that early innocence and might embrace incidents like the loss of a comrade in war. Underlying each individual notion of the flag as a personal symbol rests tribal instincts that are often expressed on a grander scale as nationalism. In short, an assault leveled against the flag can be seen as an assault leveled against an amalgam of memories, innocent ideals, and loyalties, an amalgam that is unifying but can be explosive.

However, the flag as symbol represents far more than those personal and highly charged properties that have become enmeshed within it.

When asked what the flag means to them, most Americans will immediately answer, “Freedom.” Since our early history is colored by efforts to secure it, freedom seems to be a logical first response.

But since our follow-on history includes a long episode of slavery and the repression of various social and ethnic groups, does not the flag also connote these less palatable traces of national character? Alternatively, do its constituent colors, by representing courage, purity, and justice, exclude the possibility of acknowledging their antitheses? 

If a flag as symbol is to honestly represent what America is about, that flag must be inclusive of what is bad as well as what is perceived to be good. By claiming that the flag represents only the national good, Americans must ignore a few chapters of its history and certain aspects of contemporary life. Indeed, it can be argued that for some Americans, the flag represents little more than social and economic marginalization.

Once a flag becomes old and worn or stained, its proper disposal requires burning. Local branches of the American Legion sponsor annual flag-burning ceremonies throughout the country.

How can the courts distinguish between these ceremonies and those initiated by citizens who view the country, and therefore the flag, as morally worn or stained, its courage turned cowardly, its purity violated, and its justice compromised? Which ceremony is more ethically correct?

In the former, an arbitrary determination was made some time in the past that the proper disposal of a worn flag requires its burning. In the latter, an individual or group sees flag burning as a legitimate response to a violation of its moral code or worldview.

Whether the weight of the majority condemns that response is of little consequence. A nation must pay the price if it is to honor the concept of free expression as enumerated in the First Amendment.  

By definition, ownership of property in America carries with it the right to use that property in any manner as long as that use does not endanger others. Flags are manufactured articles. They enter the distribution stream not unlike other of capitalism’s goods and are then sold to consumers. Payment transfers ownership to these consumers who are then free to use or abuse a particular article as they see fit, as long as that use causes no physical harm to the lives or property of others.

Can rights of ownership be displaced by a prohibition against the destruction of a manufactured article by its legal owner? To claim that this nation owns the symbolic portion of a flag I have purchased for $24.88 at Walmart flies in the face of logic. My flag purchase receives neither subsidy from my neighbors nor rebate from Washington. Its symbolic essence consists of what I, as citizen, attach to it. Since that essence is of a strictly personal nature, I am free to extol or to vilify it. A constitutional restriction on this freedom is nothing less than an enfeebling of the First Amendment. 

A nation that claims to be made up of free, independent citizens is a nation of potential dissenters. Freedom and the ability to protest, without harm, the actions and words of others and to take issue with an entrenched polity are parts of our everyday life and comprise the genesis of our nationhood. Although flag burning might lie at the fringes of individual liberty, its impact as a political statement will only be enhanced by its prohibition. 

If we have become so unsure of ourselves that we need to restrain this seldom-used form of protest, we are moving closer to the mindset that encourages fundamentalists of any stripe, a mindset that declares: I am always right (and its corollary, you are right if you always agree with me). A flag worth its salt as a national symbol should be made of better stuff and need not fear protest in any form, even if that means its occasional immolation.

On most national holidays, I fly two flags: the national symbol and the Marine Corps globe and anchor. As a former Marine, I love both symbols for different reasons, but they remain just that: symbols of my country and symbols of part of my personal history. A flag-burning amendment would do nothing to enhance that relationship.

Veterans retire hundreds of American flags

Veterans retire old worn flags in a respectful burning ceremony in celebration of Flag Day.

Karen Peterson photo

Veterans retire old worn flags in a respectful burning ceremony in celebration of Flag Day.

The Valley Journal, your homegrown newspaper, is an award-winning weekly serving the residents of Lake County, Montana and the Flathead Indian Reservation. 

POLSON – Many learn in grade school that to show respect to the American flag it shouldn’t touch the ground or be burned — but there is an exception. 

“There is a difference between burning a flag and retiring it,” said John Miller, member of the American Legion and Marine Corps League. “Respect is the difference.”

It was the end of the road for many American flags after flying over airports, businesses and homes last week as they were respectfully retired in a burning ceremony at Lakeview Cemetery, performed by many military veterans of the American Legion. 

“This is one of the rituals we perform every year,” Miller said of the Flag Day ceremony.

An estimated 300 flags were collected at the Veterans of Foreign Wars and Elks Lodge over the year for the ceremony.

“I’ve been involved with the veterans since 1992 and I’ve never seen a collection of flags this big,” said Mike McCloud, American Legion and Air Force Veteran. “That says something about the involvement people have around here.”

McCloud remembered a quote he read recently that summarized how he feels about the flag: “The flag is more than a symbol, it is the country. Any time you see people holding up a flag on a battle field, you understand that.” 

The ashes from the flags are also respectfully disposed of and the grommets removed.

“The grommets are good luck,” Miller said.

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