To Burn or Not to Burn?

A little over three years ago, the Senate narrowly defeated a proposal that would amend the Constitution to make burning the American flag illegal. According to The Wall Street Journal, however, banning the desecration of the flag is back up for debate:

The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.

The center of the debate: Does the First Amendment protect against non-verbal speech? As Eugene Volokh compellingly explains, the Founding Fathers intended the First Amendment to include all forms of expression:

Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's "right to speak, to write, or to publish their sentiments." Courts and commentators (including early Supreme Court Justice James Wilson) routinely used "publish" to refer to publicly displaying pictures and symbols, as well as printing books. When Congress recast Madison's phrasing to the shorter "freedom of speech, or of the press" it was not seen as a substantive change.

Yet the bigger question is whether this issue should once again be up for discussion in the U.S. Congress. Flag burning: Unpatriotic? Maybe. Harmful to other people? Not really. So why the need for a ban? 

Reason coverage on flag-burning here and here.

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  • ||

    The closest thing I have ever heard to an "argument" for banning flag burning was that it was treason (at least symbolically). That's a pretty weak argument. Does soiling one's self while wearing American flag boxer shorts count as flag desecration?

  • ||

    So why the need for a ban?



    Because politicians need something to point to as an accomplishment when they run for re-election and unfortunately voters apparently don't reward politicians who do nothing.

    Also, because politicians who actually believe that flag-burning is a sign of our impending destruction are morons and morons don't really grasp the meaning of free speech, or individual rights, or smart fiscal policy so they probably don't think twice about undermining those things.

  • Warty||

    You can eat my truck,
    But you eat my flag,
    And you're outta luck!
    She's a-wavin' proud around the world,
    From Dallas to Fort Worth,
    Let me say it again,
    Don't mess with Earth!
    Kill Zoidberg!

  • hmm||

    Burn away. Toss in some effigies to burn, maybe tar and feather a few tax collectors, run a few politicians out of town nude, some things just need doing to get the point across.

  • ||

    The decades-long obsession with flag-burning shows that conservatives can't even grasp the basics of freedom. As long as they aren't burning your flag, or one that belongs to someone else, who gives a flying sideways fuck?

  • IceTrey||

    What is so silly about all of this, is that to make it meaningful, they would have to define the look of the flag to such an exacting detail that any small change would make it unenforceable. What if I burn a flag with 49 stars? What if I burn a flag with the red color one shade lighter than specified? What if I take a pillow case and draw a flag on it with a sharpie? You can go on and on.

  • ||

    So why the need for a ban?

    Symbolism ?

    Wedge politics?

    Scoring political points with the feeble minded?

    If this ban prevents shit like this from happening, MAYBE i can support it.

  • Mad Max||

  • Mad Max||

    Why are IllegalForeignBelgians like Herge trying to take over our AmericanCulture?

  • Russ 2000||

    You can burn a flag as long as you pay for the carbon credits.

  • Tacos mmm...||

    God forbid you get any cake icing on that there flag napkin, son.

  • Dave W.||

    Semi-related:

    Funniest Teevee thing of all time (just edging out Unfrozen Caveman Lawyer and "Ithought Turkeys Could Fly":

    http://www.youtube.com/watch?feature=related&v=WPTtwImlvYI

  • ktc2||

    I cancelled my membership in the American Legion over this issue. They are always pushing to make burning the flag illegal. It's a damn stupid idea. To protect a symbol by destroying what it stands for is about as moronic as it gets.

  • hmm||

    flying turkeys > *

  • Mike||

    Don't worry, if a flag burning law ever gets to the Supreme Court, the 4 liberal justices + Scalia and maybe Thomas will strike it down. And I doubt people are going to waste their time making a constitutional amendment.

  • Tricky Prickears||

    "Symbols are for the symbol minded." - George Carlin

    Just bullshit "feel good legislation".

    However, when I was a Boy Scout (don't laugh), we were taught that the flag should not touch the ground. So I guess it's OK to burn the flag so long as it's not on the ground.

    As far as I'm concerned, go ahead and burn an American flag, that's made in China, wrapped around an illegal Mexican, while singing God Bless America.

  • Tricky Prickears||

  • ||

    Of course the irony is that, according to federal law, the correct way to dispose of a worn-out or damaged US flag is to burn it (though this is supposed to be done in a reverential atmosphere). So a law banning flag-burning is going to either have to scrap this statute or explicitly state that burning a flag may only be done in a reverential manner, which would run afoul of the 1st.

  • $20ForHeadDontCum||

    We already have laws against disrespecting foreign officials, so burning a Mexican flag is illegal. Not a peep about this from Reason, the Supremes, or the BHO regime.

    Far be it from me to insult the intelligence of anyone, so I'll just assume they're acting in their own best interests. But probably not that of any of the rest of us.

  • ||

    Dude, people, already have wasted their time making a constitutional amendment.

  • Michael Ejercito||

    Flag burning constitutes hate speech.

  • ||

    As long as they aren't burning your flag, or one that belongs to someone else, who gives a flying sideways fuck?

    I'm no aeronautical engineer, but wouldn't most flying fucks HAVE to be sideways? Or wouldn't sideways at the very least be more practical?

  • Mad Max||

    I don't think a flag amendment is a good idea, but neither do I think it attacks the concept of symbolic speech as such. It strips protection from one category of symbolic speech, but leaves others intact - like waving the communist flag, wearing a black armband, and the like.

    The amendment's sponsors criticized the symbolic-speech idea, but unless they actually include language in the amendment to abolish the doctrine, it's unlikely the federal courts will stop enforcing rights to symbolic speech outside of flag abuse.

  • polio robot||

    You still can burn a flag, but don't you dare burn that doobie.

  • Mad Max||

    To clarify - despite the sponsors' grumbling about the symbolic-speech doctrine, I assume they're only stripping protection from one category of symbolic speech, based on the message conveyed by that symbolic speech. They are basically acknowledging the meaning of the act as communication, not just as physical behavior. And they will leave other forms of symbolic speech - to which they have less strong objections - as protected as before.

  • MNG||

    David Vitter can't stand it when he is fucking a whore and sees someone burning the flag on tv...It totally ruins it for him...

  • ||

    You still can burn a flag, but don't you dare burn that doobie.

    What happens if you burn a flag with marijuana stuck to it?

  • ||

    It strips protection from one category of symbolic speech, but leaves others intact - like waving the communist flag, wearing a black armband, and the like.

    So if Congress bans saying Hail Marys, that doesn't violate the freedom of religion since you can just say Our Fathers instead?

  • Mad Max||

    Tulpa,

    What would you have said if I had *supported* the flag amendment?

    I explained that it violates freedom of speech to pass this amendment, and I said it's not a good idea to do so.

    That doesn't mean I have to embrace every argument against the amendment.

    Arguing against a constitutional amendment on the grounds that it violates the intent of a prior amendment isn't conclusive.

  • Ignignokt||

    ...wouldn't most flying fucks HAVE to be sideways? Or wouldn't sideways at the very least be more practical?



    Think again, earth man. Our vertical leap is beyond all measure.

  • mark||

    I know I said goodbye but work's over.

    So one night I was at a kegger attended by liberal hipsters, most with an IQ well over 100, and this one dude in the back yard gets out a small American flag (likely made in China and printed on polyester but that's no excuse), and takes his cigarette and starts burning holes in it. He takes delight in calling out state names and burning their star.

    So I go up to him and ask what in the fuck he thinks he's doing. He's so happy to have gotten a rise out of me he continues with the desecration. One guy drunkenly exclaims, "It's freedom of speech" as if that even matters, as if it's somehow an expression that makes speech more free than it was before you started burning the flag. I tried to get the guy to stop, and took the flag away from him for a few minutes, but finally relinquished it so that the asshole could finish burning it: at least he could do no more damage after that.

    The best I could do is leave the party disgusted, and take comfort in the fact that he probably inhaled toxic plastic fumes from the tip of his cigarette. Obviously I'm against banning the practice, but that doesn't make it any less disrespectful to me personally.

  • B||

    "We already have laws against disrespecting foreign officials, so burning a Mexican flag is illegal."

    Bullshit it is. I would love to see you provide a link to the pertinent statute on that one.

  • Benjamin Franklin||

    If you give a man a fire he will be warm for a day, but if you set him on fire, he will be warm for the rest of his life.

  • Michael Ejercito||

    One guy drunkenly exclaims, "It's freedom of speech" as if that even matters, as if it's somehow an expression that makes speech more free than it was before you started burning the flag. I tried to get the guy to stop, and took the flag away from him for a few minutes, but finally relinquished it so that the asshole could finish burning it: at least he could do no more damage after that.


    Would he have the same attitude about telling crude racist jokes?

  • Abe Simpson||

    What if I burn a flag with 49 stars?

    I'll be deep in the cold cold ground before I recognize Missouri!

  • The Angry Optimist||

    mark - you should not have taken his property, but you should definitely have loudly and constantly verbally berated him. And then inform the owner of the home that either Jackass went or you did.

    And, in the future, don't party with hipsters. They suck ass.

  • ||

    So one night I was at a kegger attended by liberal hipsters

    They have kegs of PBR now?

  • tarran||

    Who knew Warty was the head of the ACLU?

  • alan||

    mark,

    You could have done was ignore him instead of playing into his fucked up world view, after all it wasn't your property to take away. No, the best thing you could have done was take out your JFK figurine and shot it in the head (doesn't every one keep one handy as well as a gun for moments like this?).

    Wait, no, better than that would be to take out your FDR in a wheelchair figurine and say, 'rise, rise by the holy powers of the Lord.'

    Wait, the absolute best thing you could have done would have been to take out a Martin Luther King figurine and have him slap and punch the figurine of a whore.

    As stupid as the sacred cows are on the conservative side, there are even more on the other.

  • alan||

    You could have done was ignore him instead of playing into his fucked up world view,

    See those editing skills on display there? That's why I get paid the big bucks.

  • Ben Kenobi||

    Can't douchebag Vitter just go fuck some whores and stop proposing stupid laws.

  • Rich||

    Isn't this stuff somehow covered by "hate crime" legislation already? 8-(

  • hmm||

    and takes his cigarette and starts burning holes in it. He takes delight in calling out state names and burning their star.


    Step one:
    Find a Marine. (preferably a younger intoxicated one and/or more than one)
    Step two:
    Tell Marine that there's a guy over here burning a flag and he said the Marines are where they send all the gay navy guys for punishment.
    Step three:
    Stand in front yard and listen to the pleas for mercy coming from the screaming hippy in the back yard.

    Problem solved. Entertainment provided. Snotty intellectual learned in the ways of Darwinism with respect to brute force. It's a win win for all.

  • ||

    Step four:
    Police gets called, and the Marine gets arrested for assault and battery and spends the night in jail. The Marine understands that he is not above the law, and there is nothing wrong with gays in the military.

  • Andy||

    Flag burning constitutes hate speech.

    Probably.. as this is a libertarian blog, I'd imagine most of us are against regulating hate speech.

  • max hats||

    The proposal, introduced this spring in the Senate by David Vitter



    Patriotism is the last refuge of the diaper-fetishist whoremonger.

  • LarryA||

    Of course the irony is that, according to federal law, the correct way to dispose of a worn-out or damaged US flag is to burn it (though this is supposed to be done in a reverential atmosphere).

    The true irony, particularly so soon after the Fourth, is that this country was born burning our national flag.

  • ||

    People are offended by flag burning because that is what it is intended to do - offend. That said, I have long felt that the solution to this political problem was simple; treat flag burners the same as any other nitwit who lights a fire in a public place without the applicable permits. A full sized flag, when set on fire, is an obvious hazard to the public. The "message" in burning a flag can be conveyed by means that do not include endangering the public in a way long made illegal for safety reasons. If the flag burners absolutely MUST burn the flag to make their point, they can apply to a fire permit just as the KKK does when they want to have a cross burning. Such treatment would remove from the flag burners the largely undeserved mantle of Defenders of the First Amendment and return them to their proper place as annoying jerks.

  • Abdul||

    Flag burning: Unpatriotic? Maybe.

    Okay, while I agree with the free-speech arguments, how can the answer to the "Unpatriotic" question be anything other than "Yes."

    Spitting on your mother: Insulting? Maybe.

  • John||

    This is an insult to all our soldiers that died defending the flag. It should be passed.

  • ||

    "Far from being a case of 'one picture being worth a thousand words,' flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."

    Texas v. Johnson, 491 U.S. 397, 432 (1989) (Rehnquist, C.J., dissenting).

  • ||

    "Step four:
    Police gets called, and the Marine gets arrested for assault and battery and spends the night in jail. The Marine understands that he is not above the law, and there is nothing wrong with gays in the military.


    Yes, because valuable lessons about life and obeying the law are learned by all who spend a night in jail.

    More likely, the Marine spends a night in jail, if that. He is reverred by the cops while there, and returns to his unit a hero of sorts.

    Unlikely that a night in jail will change anyones view of sexuality, and what is ok and what is not ok.

    It will prbably take years, and maybe a friendship and/or an open mind for that.

  • Fluffy||

    The best way to protect flags [totems are for savages, by the way, but whatever floats your boat] if you really want to protect them is...to not care.

    The entire point of burning a flag is to deliberately outrage the people who worship them.

    No one is ever going to burn a "Fluffyerican" flag because I would not give a shit, so their action would be pointless.

    By the way, I just have the point out that I vastly prefer the original Madisonian language of the amendment, and we got screwed when it wasn't preserved. The sentence structure in the amendment that was actually ratified has allowed the courts to treat "the press" as if it were some sort of subset of the citizenry, defined by particular actions, and this has resulted in various types of disparate treatment for different speakers based on whether or not the state accepts that they are part of "the press", and based on whether or not the topic of their writing is, in the view of the state, a fit topic for public consumption. With the original Madisonian language [for example] I really don't see how the obscenity exemption could survive, I really don't see how the commercial speech exemption could survive, I really don't see how the libel laws that treat "press" coverage of public figures differently could survive, etc. Fucking bad editors strike again!

  • SpongePaul||

    Really, its just a fucking flag. seriously it means nothing its a piece of colored cloth. dont see what the big deal is. its a symbol, thats all. it has no inherant value over any other piece of cloth. and they burn em anyway. its the proper disposal method of old flags. although thats just a bunch of pomp and circumstance too.

  • John||

    it has no inherant value over any other piece of cloth. and they burn em anyway.

    Our soldiers died to defend that piece of cloth.

  • Fluffy||

    Our soldiers died to defend that piece of cloth.

    I assume this is sarcasm. If not: No, they didn't.

    If the United States were conquered by a foreign power, and all of its citizens sold into slavery, and every written record of its political institutions and liberty were destroyed, but every American flag everywhere were preserved with loving devotion as works of art, would you say, "Well, at least our soldiers didn't die in vain"?

    If so, you = fail.

  • Zeb||

    Okay, while I agree with the free-speech arguments, how can the answer to the "Unpatriotic" question be anything other than "Yes."

    I think that this depends on what your definition of patriotism is and what the motivation of the burner is. I think it is quite possible to be patriotic and still think that symbols like the flag are stupid and meaningless. Such a person could burn a flag just for the pleasure of annoying people who are against that sort of thing. Burning a flag doesn't have to be a protest or symbolic attack on the country. It could just be burning a piece of cloth.

  • ||

    "Okay, while I agree with the free-speech arguments, how can the answer to the 'Unpatriotic' question be anything other than 'Yes.'"

    Because, presumably, one protests something in order to make the place better. The flag represents freedom. Banning flag burning is anti-freedom. If one considers the United States the best place in the world because of its freedom, then burning the flag would be an exercise in patriotism. Whether flag burning is "unpatriotic" or not depends on the message being sent.

  • Ska||

    When they ban flag burning, flag ass wiping will become the preferred method of protest via flag desecration. Or cutting it up with scissors. Or one of five million other things you can do. What about a big sign with a flag and the red circle with a line through it (has someone come up with a good name for that thing yet?) that says "Fuck the United States government"?

    How can you just ban flag burning and think it stops there?

  • ||

    Does soiling one's self while wearing American flag boxer shorts count as flag desecration?



    Actually, it's considered disrespectful to wear the flag in the first place. That includes lapel pins, in case any of the self-righteous warmongering hypocrites in public office care.

  • ||

    The soldiers may have died thinking that they were defending the flag. Not too many of them, imo, thought they were defeding the income tax, the regulatory state, gun confiscation, racism, the draft, affirmative action and the war on drugs.

  • LarryA||

    This is an insult to all our soldiers that died defending the flag.

    The oath soldiers take is to protect and defend the Constitution. A flag-burning amendment is indeed an insult to them.

    Okay, while I agree with the free-speech arguments, how can the answer to the 'Unpatriotic' question be anything other than 'Yes.'

    "Patriotism" is not unquestioning loyalty to the government, over the people. If the government gets to the point of egregiously violating the Constitution or Bill of Rights and it's time, per the Declaration of Independence, to "alter or abolish" said government, burning the government's flag will be patriotic. Just like when patriots replaced the Union Jack.

  • mark||

    Right Tony, keep telling yourself that.

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