[Originally Published December 16th 2016 on Wordpress]
INTRODUCTION:
Among our constitutional rights as American citizens, no right is more paramount in my opinion, than the First Amendment: Freedom of Speech. While some may argue that the right of gun ownership supersedes this right insignificance, due to that right being the one that reinforces all of the others. I would argue that the Second Amendment exists due to the first, by way of having the right to advocate for gun rights. However, even the passive observer can clearly see that our right of Free speech has been constantly under siege in present history. It appears as if these attacks are being come more constant and pervasive. There are even rumors that far-right podcasts, publications, websites, etc. such as Infowars & Breitbart being censored (I personally do not have enough evidence to substantiate nor deny such rumors). Political correctness has surged to power to become a brutal and totalitarian force in public discourse as well as in private conversations. However, in regards to restrictions on free speech, political correctness is not the only culprit. We have also seen an attack from Conservatives and Liberals on freedom of speech, in regards to the act of Flag burning. The act of Flag burning has been deemed a constitutionally protected form of freedom of speech and should not be outright prohibited. Overall, it seems as if both sides of the political fence are being less than true to Freedom of speech. We all need to put aside our agendas, biases, and opinions of side and allow others to speak their mind regardless of our opinion of their views. Proposing to ban any form of non-violent self-expression is not only hypocritical, but it also is contrary to the very values that are fundamental to the United States.
Amendment I:
"...Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances..." [3].
How is it constitutional?
Let me clear the air, prior to us continuing on with the topic of flag burning because I want to demonstrate that I am not coming from an Anti-patriotic bias. For the sake of being of transparency, let me state that I am not necessarily a “red-blooded American”. I do not buy into Americana nor do I like to be, simultaneously, feed steaming pile of shit while being sodomized by a crooked bureaucrat with a red, white, and blue phallus. In spite of all of my cynicism towards the propaganda enshrouding Americana, I personally disapprove of flag burning. My reasoning behind my point of view is that I have had many friends who have served in the armed services and I would prefer not to disrespect their service. Also, there are more productive means to express displeasure with US policies, actions, legislation, politicians, etc. Let’s be honest here, the vast majority of individuals that engage in the act of flag burning, are merely doing so to intentionally be inflammatory pricks. However, while America has never had an innocent history (founded on bloodshed by slave owners who wanted to be free), despite the 1950’s flag-waving propaganda of the proponents of Americana, I do have the utmost respect for the Constitution of the United States. The almost oxymoronic act of slaver owners crafting a governing document for the country that not only was malleable but aimed to preserve the basic rights of the citizens was and is incredible. In my humble opinion, it may very well be the most impressive governing document since the Magna Carta. Due to the significance of the constitution in regards to protecting the right of free speech, I see it as being the best measure to evaluate whether or not flag burning is protected as symbolic expression. While I do not agree with the act, I do believe that it should be a protected form of symbolic free speech, due to the ruling on Supreme Court case Johnson V. Texas.
The landmark case ruling in the favor of the act of flag burning is protected under the First Amendment of the Constitution was Johnson V. Texas. The individual at the center of this particular Supreme Court ruling was Gregory Lee Johnson. Johnson was arrested for conducting a flag burning demonstration outside of the convention center during the 1984 Republican National Convention in Dallas, TX. Johnson was initially arrested due to a violation of Texas Statute of “desecration of a venerated object”[4] . However, In March of 1989, the Supreme court ruled in favor of Johnson’s appeal, relinquishing his one-year prison sentence [5]. Supreme court Justice William J. Brennan, Jr. stated that the rationale behind the ruling is that the First Amendment is a “bedrock principle” and that “ the government should not prohibit expression of an idea simply because society finds the idea offensive or disagreeable”. However, some may argue that Justice Brennan may have a bit of bias due to his liberal ideology. While such political leanings could be construed as concerning, please note that conservatives such as Anthony Kennedy and Antonin Scalia also ruled in favor of Johnson in this case. Johnson’s conviction was overturned by a 5-4 ruling[6]. To sum up the verdict in this case essentially, even offensive free speech is still valid and protected by the First Amendment of the U.S. Constitution.
personally agree with Brennan’s response to the case, due to the fact that Self-expression should not be censored due to the fact that individuals find the symbolism or message to be offensive. Hypothetically, let’s say that displaying Christmas were to be outlawed due to non-Christians finding such displays to be offensive. Would that be a just response because the Atheist down the street despises all aspects of organized religion, including religious holidays? I believe that the vast majority of people would say, “No”. However, let me pose this inquiry here, is it really any difference between the two? Potentially the intend of both forms of symbolic expression, but if one form of expression is prohibited due to being deemed offensive, where does it end? The issue becomes that it is a slippery slope when we as a society choose to ban certain forms of speech, and then the fabric of the principle becomes compromised. Prohibiting one form of speech or symbolic expression can be extrapolated to another situation suppressing the views of other individuals. It essentially presents dangerous precedent that could devalue the validity of our constitutional rights. While I typically oppose the intervention of the federal government in state affairs, this would be one of the few exceptions that I approve of. If the state is looking to enforce policies that infringe upon our constitutional rights, someone needs to step in. If we start banning various forms of free expression/speech, it could potentially engender a treacherous domino effect.
CONCLUSION:
Although I personally disagree with the act of flag burning, it should not be banned due to the offensive nature of the act. I personally champion any individual’s right to freedom of speech regardless of how and I feel or the general public feels about the message they are attempting. As demonstrated by the Supreme court’s ruling on the case Johnson V. Texas (1989), the act of flag burning is, in fact, a constitutionally protected form of free speech. The Supreme Court found that to prohibit such a demonstration would be an unjust attack on our First Amendment rights. The issue is that if we limit one form of free speech due to being offensive in nature, where does the censorship end? It opens up the potential for other forms of valid free speech to be prohibited as well. To the individuals who find flag burning offensive, please respect the free speech of others and let them express their point of view. Better yet, if you see flag burning demonstration, please exercise your First Amendment rights and hold a counter-demonstration. Such an act would be a rational alternative to resorting to violence or aggressive tactics to express your displeasure for the act of flag burning. Remember the old saying “Two wrongs don’t make a right” and that it is unwise to engage illegal actions such as assault to convey your point. Note for all flag burners and individuals in opposition of the act, please put your emotions aside and engage in an intelligent dialogue to attempt to understand the point of view of the other side.
FOOT NOTES:
1. (VIDEO) https://youtu.be/PaGAO7f3xx0
2.https://invertedlogicblog.wordpress.com/2016/12/15/political-opinions-the-flag-and-freedom-of-speech
3.https://www.law.cornell.edu/constitution/first_amendment
4.https://www.law.cornell.edu/supremecourt/text/491/397
5.http://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson
6.https://www.britannica.com/event/Texas-v-Johnson