Don't burn the flag or First Amendment -- Dec. 1, 2016 column

By MARSHA MERCER

My guess is that few demonstrators who burned American flags to protest the election of Donald J. Trump have attended a funeral at Arlington National Cemetery.

Had they watched honor guards in white gloves neatly fold and present to the next of kin the flag that covered the coffin of a fallen service member, they would see the flag as personal.

A powerful and poignant symbol of sacrifice and honor, the American flag should never be torched to make a political point. The very idea is repugnant. 

This is not to say, though, that someone who burns the flag in protest should be jailed for a year or stripped of citizenship, as Trump suggested.

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail,” the president-elect tweeted at 6:55 on Tuesday morning.

The tweet seemed to come out of the blue, but Fox News reportedly had just aired a segment about a dispute at private Hampshire College in Massachusetts, where a flag was burned in an anti-Trump protest.

“Flag burning should be illegal – end of story,” Jason Miller, Trump transition spokesman, insisted later that day on CNN. “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.”

No, actually, there’s not.

The Supreme Court ruled in Texas v. Johnson in 1989 that flag burning was “symbolic speech” protected by the First Amendment and invalidated laws against flag burning in 48 states. 

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the court ruled in a 5-to-4 decision.

Among those in the majority was Justice Antonin Scalia.

“If I were king, I would not allow people to go about burning the American flag,” Scalia later told a TV interviewer. “However, we have a First Amendment, which says that in particular to speech . . . burning the flag is a form of expression.”

That likely would surprise Trump, who has joined the ranks of politicians who periodically fulminate against flag burning. By doing so, they draw attention to an exceedingly rare act that ought to be tolerated -- and ignored.

Perhaps no First Amendment issue is thornier. The American Legion applauded Trump’s tweet and urged Congress to prohibit flag desecration, something Congress has tried to do repeatedly over the years.

  

Everybody should take a deep breath and remember the wisdom of the late Sen. Daniel Inouye, Democrat of Hawaii, who received the Medal of Honor for his service in World War II, even as fellow Americans of Japanese descent were incarcerated in U.S. prison camps.

“This objectionable expression is obscene, it is painful, it is unpatriotic,” Inouye once said. “But I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts.”

Then-Sen. Hillary Clinton of New York co-sponsored a bill in 2005 that would have punished flag burning by a fine up to $100,000 or a year in prison, or both. Her idea was to find common ground between veterans groups and free speech advocates.

“Senator Clinton, in Pander Mode,” The New York Times opined in an editorial 11 years ago this week, saying flag burnings had largely disappeared since the Vietnam War.

“Flag-burning hasn’t been in fashion since college students used slide rules in math class and went to pay phones at the student union to call their friends. Even then, it was a rarity that certainly never put the nation’s security in peril,” the editors trenchantly observed.

It’s still true that flag burning is rare and has never imperiled national security. Criminalizing flag burning might be politically popular, but the last thing we need is to make martyrs of publicity seekers with lighters who want their 15 minutes of fame.

Trump soon will fill the court vacancy caused by Scalia’s death. He has promised to name a justice who thinks like Scalia, and he should -- on flag burning and the First Amendment.

© 2016 Marsha Mercer. All rights reserved. 30