Flag

Flag Burning Might Be Offensive, But it is Protected Speech

President-elect Donald Trump reignites a long-settled argument.

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How do we sleep while our flags are burning?
Daniel Raustadt/Dreamstime.com

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." — U.S. Supreme Court Justice Robert H. Jackson

Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment — loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions?

Here is the backstory.

Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro — the long-time, brutal, profoundly anti-American dictator of Cuba — students on a few American college campuses publicly burned American flags. These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.

For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.

Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.

That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment.

The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox, and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as lovable or popular ideas need no protection.

The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference.

In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its author, Thomas Jefferson, and its signers had they lost the American Revolutionary War. Thank God they won.

Justice Jackson also warned that a government strong enough to suppress ideas that it hates or fears was powerful enough to suppress debate that inconveniences it, and that suppression would destroy the purposes of the First Amendment. The Jacksonian warning is directly related to the Amendment's remaining understood purpose — to encourage and protect open, wide, robust debate about any aspect of government.

All these values were addressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burning controversies by invalidating all statutes aimed at suppressing opinions.

Even though he personally condemned flag burning, the late Justice Antonin Scalia joined the majority in both cases and actively defended both decisions. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don't have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.

The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people — this writer among them — yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.

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  1. “I prefer someone who burns the flag and then wraps themselves up in the Constitution over someone who burns the Constitution and then wraps themselves up in the flag.” Molly Ivins

    1. And Molly Ivins was someone who looks burn both the flag and the constitution.

      1. Haven’t we had enough of these people saying the Constitution protects flag burning? These are very bad people, very bad. We need to crack down on flag-burning, and then satire too, so we can make America great again. We have to stop the satire. We’re going to stop the satire, we’re going to stop the satire. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “parody” case? See the documentation at:

        http://raphaelgolbtrial.wordpress.com/

    2. I prefer people who wrap themselves in the flag then burn it.

  2. “The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many.”

    It is?

    1. And the hammer and sickle are a universally recognizable symbol of mass murder.

    2. It isn’t obviously and the Russians beat the Nazis.

  3. This is not about flag burning (you idiot). It’s about revoking citizenship of ‘terrorists’ like they are trying to do in Europe. And you better fucking defend me after all of your crap I’ve had to put up with.

    1. Knowing the media, its about Trump’s opinion that he doesn’t like flag burners and thinks it should be criminal and the media spins that into everyone should have listened to the lefty media because Trump will be der fuhrer.

      I served in the military and don’t like people burning the American flag, but they are protected by the 1 st Amendment to burn it.

      Lets try burning the flag of Mexico, in Mexico City and see what happens. Or the Russian flag in Moscow and see what happens.

    2. No, this about using a Tweet that took about 10 seconds to write to make the morons in media chase their tails for two or three days, while he works on putting together his team or whatever.

  4. I definitely wish Judge Andrew P. Napolitano got the call from President-elect Trump for a meeting. Then the media could speculate about how he would be as a Supreme Court Justice.

  5. Burning the US flags should be totally legal as long as its your flag and your doing it on your property.

    Burning the US flag owned by someone else on someone else’s property is arson

    Burning government owned flags is destruction of government property and doing on public land should be allowed within reason for example if the burning is not a danger to others or their property

    1. What about burning your flag on public land?

      1. Legal unless you damage other property or people.

        1. Just clarifying.

  6. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don’t have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.

    The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people ? this writer among them ? yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.

    Sounds like you’re putting words in Scalia’s mouth.

    He seemed to prefer that flag burning was illegal, but recognizes that the Constitution disagreed with him, and had made flag burning protected speech.

    That it “dilutes the very freedoms…” seems words you’re putting in Scalia’s mouth that aren’t justified by his comments. He’d prefer it was illegal. Are we to suppose that he was in favor of “diluting the very freedoms that make the flag worth revering”, in his own estimation? I think not.

  7. Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations ? the same statutes permitted other public fires ? but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.

    Whoever claimed that anti flag burning laws were intended as fire safety regulations? Sounds like a complete red herring to the argument.

    They overturned long standing laws, widely approved of. Apparently the country didn’t consider these laws an affront to the 1st amendment. For a hundred years. And then it was. Seems rather magical.

    I guess you could, and I would, argue that rights violations do not become constitutional simply by hanging around long enough. But this should require a stronger than usual showing of original intent.

    Where is that showing?

    It’s easy to interpret the 1st amendment such that all *actions* are not considered speech even though they have symbolic content.
    Where is the demonstration that that was not the original intent?

    1. By the way, I’m actually against having laws against flag desecration.

      I’m just commenting on the lax standards I’m seeing for constitutional argument in this case. “I read it this way” isn’t much of an argument, particularly in the face of a 100 years when it was read otherwise.

      1. I guess the point is that politicians and anti-constitution types will find any manner to get their way. In this case, saying that burning a flag is a fire hazard, therefore illegal.

        This logic should be nipped in the bud like all infringements of constitutional protections. Always defer to protecting the right because these slippery police state types will make everything illegal using some excuse.

    2. Whoever claimed that anti flag burning laws were intended as fire safety regulations? Sounds like a complete red herring to the argument.

      Yes, this was simply a fig leaf of an argument. Everyone knew it. But the idea was that “flag burning” was something everyone wanted to stop because it is offensive to the body politic. So they said the government had the right to enact fire safety laws – therefore they could place restrictions on flag burning.

      A little motivated reasoning and voila, a political protest is magically no longer speech.

    3. The Kama Sutra was banned until 1959 or so.

      People in DC couldn’t own working guns for 40 years.

      Why should anyone have to meet a higher standard for proving government abuse because it’s been happening for a long time?

      Let’s say you beat your wife daily. Should there be a higher standard of proof after 12 years, vs 5 weeks?

  8. Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment ? loss of citizenship or one year in jail.

    “It” being violating your oath to uphold the Constitution, right? RIGHT?!

    1. No, not right.

      Unless you can point to activity showing otherwise, he hasn’t actually done anything except exercise his right to free speech.

    2. He hasn’t taken that oath yet.

  9. I’m just flabbergasted. You guys got so successfully trolled that you are still burning calories on this 3 days later?

    I was absolutely convinced that Trump was just a blowhard goofball with way too high of an opinion of himself and no communications skills at all.

    He’s finally got me convinced. Not by his actions, but by successfully playing everyone so deftly. With everything that is going on, you guys really buy the notion that some tweet from Trump is an actual call to arms to pass a law stripping Americans of their citizenship if they participate in a flag-burning?

    Damn, that’s stupid. I mean, this is “too dumb to be allowed out of the house without posting a ‘silver alert’ stupid”. He’s playing you. How can you not see that? For about 30 seconds of work, he’s managed to get all of his political enemies in a twist about flag-burning, something that hasn’t existed as an issue since the 80’s. It is a non-issue. Nothing is going to change.

    I thought he was dumb, but he’s not so dumb that he thinks this is really an issue. The charade is too thin… you can see right through it. All the DNC spin was starting to get traction, so he tossed a shiny object in front of you and you all fell for it. What is this, the 5th or 6th post about this tweet? I thought you guys were too smart to get trolled so easily.

    1. I’m convinced that Trump is peerlessly brilliant in this regard. Someone was recently mocking him for the off-the-rack fit of his suits and how he wears his ties like a kid dressing himself for church for the first time, and I realized that even that might be completely calculated. If I was at the opposite end of the table in a meeting with him, all I’d be able to think about is, “How the fuck does this guy dress this way and still maintain such a level of success?” It’s completely disarming.

      1. If you think Trump is a dumb dumb or underestimate him, you will be in for a shocker.

        I do agree with some things he stands for, disagree with other things but I know he is pretty smart and should not be underestimated.

    2. Yeah, I’m starting to come around on Trump. There have been four consequences to this tweet, and they all stacked up brilliantly for Mr. Trump:

      1) The whole mainstream media has come out defending flag-burning, again reminding a huge section of the American public that the media is the “other”, and they should discount what it says accordingly.

      2) Hillary Clinton’s 2005 proposal to outlaw flag-burning has been brought up, again reminding a huge section of the American public that the media deals in blatant double standards, and they should discount what it says accordingly.

      3) Anti-Trump idiots have gone out and started burning the American flag, reminding a huge section of the American public that the protestors are idiots.

      4) The massive screaming that he was a dangerous fascist dictator who must not be normalized has switched from emphasizing some idiot Nazis hated by 99% of America to an issue where a large number of Americans at least emotionally identify with Trump’s position.

      Fuck, I think I owe Scott Adams a half-apology.

      1. Yeah, I thought Scott Adams was playing some kind of meta-troll mind games with his “Trump is the great persuader” posts. The whole hypnotism thing made it just silly enough to be a weird inside joke.

        It turns out that he was not only serious, he was right. I’m glad he’s not a betting man, because if he had offered his investment account against mine that Trump was going to win right after his first post, I’d have taken that bet and laughed my ass off.

  10. Jesus Fucking H Presentable Christ on a pogo stick, why is the WORLD is anyone paying attention to this sort of brain lint, much less taking it seriously?

    1988 called, it wants its election back.

    1. IN the world. Where is that edit button…?

      1. Why is it that only a couple of dipshits who post under ridiculously juvenile handles on websites can see the silly and transparent diversion that is the “flag burning” tweet? How the hell is some guy with a meta-troll for a handle gifted with more insight than someone who covers politics for a living?

        1. Because the MSM and even Reason staffers jobs are entirely based on screaming “TRUMP WANTS TO BAN FLAG BURNING AND THROW MEXICANS IN PRISON CAMPS AND WHITE NATIONALISM!!!!!”

          Whereas the hnr commentariat jobs are entirely based on things like buying/selling real estate, teaching linguistics, insurance actuarials, hospital administration, heavy equipment brokerage, chemical engineering, etc.

          The reaction to Trump is sad, but predictable at this point. Journalism is devolving into “yell louder”.

          1. And no facts. Trump Tweets equal policy.

          2. Hey some of us make an honest living collecting stallion semen while making comments.

        2. Because, as veteran commenters, you guys are actually familiar with the concept of trolling and are fluent in behavioral norms on the internet. Trump is truly the first social media president, which is why his tweeting behavior throws so many journalists for a loop. They are expecting finely crafted policy statements, not stream of consciousness thought mixed with bluster, random inappropriateness, and misdirection. Trump is an internet commenter IRL, so it’s not surprising that internet commenters would be the first to see through him.

        3. As much as I would love to suggest it’s due to the fact that journalists are easily manipulated half-wits, it is also to no small extent due to the fact that writing an article about whatever Trump says pays the bills, and rolling your eyes and ignoring it does not.

      2. Why is it that only a couple of dipshits who post under ridiculously juvenile handles on websites can see the silly and transparent diversion that is the “flag burning” tweet? How the hell is some guy with a meta-troll for a handle gifted with more insight than someone who covers politics for a living?

        1. And why is it that only the squirrels seem to understand the deep insight of my posts?

          1. No edit function, squirrels, meanwhile hitting us up for money.

            1. The squirrels ain’t going to feed themselves.

        2. How the hell is some guy with a meta-troll for a handle gifted with more insight than someone who covers politics for a living?

          I can never remember which one is the tard and which one is the intelligent and often insightful commenter, Cyto or Cytotoxic. You guys confuse me. Thanks for the reminder.

      3. Who knows. On the flip side, we do get to say shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.

        1. Yeah, but not on TV….

          1. Correct. If I got on my TV, it would break before I got the words out.

            1. But we do get to have our cheese tits. And tater tits.

              So huzzah for the land of the free, I suppose….

        2. I’m trying to see a common thread.

          The South Henrietta Institute of Technology. Low quality Beer. A punctuation mark. An Australian greeting. Someone who does unwholesome things with poultry. A generic term for person or persons unknown. A type of bird.

          I’m not seeing it.

          1. Picture a cartoon with Henrietta the Hen chasing Foghorn Leghorn…still trying to figure out where the tits come in.

            1. I say I say….
              As senior rooster ’round here, it’s my duty, and my pleasure, to instruct junior roosters in the ancient art of roostery

  11. Trump was probably trolling Hillary Clinton who actually introduced a bill back in 2005 that would have outlawed flag burning.

  12. Burning the Midnight Oil for the alt text.

    1. General Sherman, you are only supposed to burn down Atlanta.

    2. Look, just because the Canukistanis have to work year round to work the tar sands doesn’t mean we should disparage their winter output.

      1. Texas’s SUVs and pick-ups are not going to guzzle maple syrup.

    3. “We sleep freely in our beds because doughy men stand in front of cameras to visit fire on cotton/linen blends in red, white, and blue.”

  13. You are right they do have the right to burn the flag and I have the right to beat the hell out of them if I am willing to pay the consequences. God bless America

    1. Call me a nitpicker, but um, no, you do not have the right to beat the hell out of them.

      1. Hence, the consequences.

      2. And he doesn’t even have the “right” to threaten to beat the hell out of ’em.

        Constitution and basic law classes for simplybe.

    2. the right to beat the hell out of them if I am willing to pay the consequences.

      Well the whole ‘legal consequences’ of the ‘barbaric violence because someone hurt your totem’ thing leads me to believe that no, you probably don’t have that right. Is that some part of the Constitution I missed? “Congress shall make no law preventing citizens from acting like overemotional asshats?”

  14. Admittedly, if I had Trump’s ability to cause people (mostly journalists) to freak the hell out, I’d abuse it to no end.

    “I’m pleased to tell you today that I’ve signed legislation that will outlaw Russia forever.”

    “Anyone know where I can get a bunch of train cattle cars on the cheap?”

    “Yes, they’re for cattle, you idiot.”

    1. Hilarious. I would too because I wouldn’t be able to help myself. The media deserves it too. They are so desperate to save their faux news organizations from bankruptcy.

    2. Maybe Hillary was trying to channel this Trump superpower with her “Enforce a No Fly Zone Over Syria” proposal. That one was stupid enough to be a Trump tweet.

  15. “the Supreme Court has repeatedly protected the right to offend”
    Yeah, right. Go burn a rainbow flag on a college campus and report back!
    (as soon as you get out of jail, if you are not lynched)

  16. Let’s hope it’s a red herring to distract the christianofascist wing of the trumpenproletariat away from the subject of forcing women to bear lebensborn for Hitlerjugend training into cannon fodder. This flag business flared up at Crystal City, Texas* when it was an internment concentration camp for Kristallnacht National Socialists (the original item, from Germany). Those particular nazis became incensed when prison camp guards tore down a German flag they’d cobbled together, so the inmates shredded a US flag. To save on silk, the INS put the US flag outside the perimeter fence.
    With that precedent established, God’s Own Prohibitionists can simply rent space for US flags on the Mexican and Canadian sides of The Jailing Wall their platform promised to build around These States.
    Ref: The Train to Crystal City by JJ Russel

  17. So if I claim that the reason I want to burn the leaves on my property is as a form of protest toward the Trudeau administration in Canada, would I now be allowed to do so? Has anyone ever tried this tactic to get around the various local laws?

  18. The only objection I have to flag burners (ok, they’re obnoxious attention seekers. So am I) is that fire isn’t safe, and we give the symbolic use of fire in ‘protests’ far too much leeway. Anyone who sets fire to anything of an size should have to get a fire permit (assuming that where they are protesting has such a permit system, as most places do). If they don’t get the permit, they get a ticket and have to pay a fine. Why? because that large sheet of petrochemical based cloth that’s blazing and flapping so dramatically in the breeze is a hazard. If it hits somebody in the face, it’s going to stick, and the local EMTs are going to be busy.

    The KKK is (in most places) required to get a permit to hold their obnoxious cross burning ceremonies. Putting the “Anybody to the Right of us is Hitler” bunch on the same plane as the Klucks is about right.

  19. Burning a flag or any other piece of cloth is NOT SPEECH. SPEECH = spoken language. What is the matter with these people who think MONEY paid as a bribe is free speech and burning a flag is free speech. I am sick of this nonsense. Burning the flag is an expression of contempt for the USA. Such people do not belong in the America I know. Read “The Man Without a Country” if you want to get a better understanding of this issue.

    1. Burning a flag … is NOT SPEECH. SPEECH = spoken language.

      Imma just gonna juxtapose that with your next thought…

      Burning the flag is an expression of contempt for the USA.

      1. Giving someone the middle finger salute is also an expression of contempt. Is that free speech?

        1. Yes. Yes it is.

          Also might come under the rubric of “fighting words”, which are a carve-out from the free expression of ideas that might get you prosecuted. I suppose it becomes a case of intent and interpretation.

          1. Sorry, I do not agree with this sloppy definition of free speech clause in the First Amendment. I am certain the Founders did not intend flag burning as free speech.

  20. Surprise! Trump is just as big a fascist idiot as many of expected. That didn’t take long.

  21. Speech and property . . . your right if it’s your property. Seems clear to me.

  22. The trumpkins really don’t get America at all. At least, they don’t get the constitution. They don’t get freedom. They don’t get individualism. It’s completely lost on them.

  23. Flag burning may offend president elect Trump. Each of us is entitled to choose what might be “offensive” to them, however that choice having been made, the thing ends right there, for unless I misremember, flag burning, which I too might find offensive, has been ruled “protected speech” by The Supreme Court. Of course, a differently composed court might rule differently, in the future, but for now, the court has spoken. Case closed.

  24. Flag burning may offend president elect Trump. Each of us is entitled to choose what might be “offensive” to them, however that choice having been made, the thing ends right there, for unless I misremember, flag burning, which I too might find offensive, has been ruled “protected speech” by The Supreme Court. Of course, a differently composed court might rule differently, in the future, but for now, the court has spoken. Case closed.

  25. Flag burning may offend president elect Trump. Each of us is entitled to choose what might be “offensive” to them, however that choice having been made, the thing ends right there, for unless I misremember, flag burning, which I too might find offensive, has been ruled “protected speech” by The Supreme Court. Of course, a differently composed court might rule differently, in the future, but for now, the court has spoken. Case closed.

  26. Flag burning may offend president elect Trump. Each of us is entitled to choose what might be “offensive” to them, however that choice having been made, the thing ends right there, for unless I misremember, flag burning, which I too might find offensive, has been ruled “protected speech” by The Supreme Court. Of course, a differently composed court might rule differently, in the future, but for now, the court has spoken. Case closed.

  27. Flag burning may offend president elect Trump. Each of us is entitled to choose what might be “offensive” to them, however that choice having been made, the thing ends right there, for unless I misremember, flag burning, which I too might find offensive, has been ruled “protected speech” by The Supreme Court. Of course, a differently composed court might rule differently, in the future, but for now, the court has spoken. Case closed.

    1. Please excuse repetitive posts, operator error.

  28. Amazing the number of people that have bought into the myth (the original definition-a popular belief or tradition that has grown up around something or someone; especially: one embodying the ideals and institutions of a society or segment of society) that the flag IS America.

  29. If you wish to burn the Flag, just have the good grace to wrap yourself in it first.

    1. Good one! Wish I’d thought of that.

  30. Too bad the flag-burners don’t realize they are living in a country that treasures liberty and freedom of speech enough to allow them to say, via flag-burning, “I hate America.”

    Let ’em burn the flags all they want. They’ll lose a few friends and turn off a few relatives. Hopefully they’ll reach maturity one day.

  31. Speech = “1. The faculty of uttering articulate sounds or words to express thoughts; the power of speaking.” This according to Websters New Collegiate Dictionary, 1959.

    Giving money to politicians to “encourage” them to pass certain legislation is not free speech; it is bribery.

    Burning the American flag is not free speech; it is an insult to the USA and its citizens, and should be dealt with as such. Jail time, reeducation in patriotic symbolism, or deportation might all be considerations for punishment. It is little different from throwing mud on a respectable citizen, except that it insults all Americans instead of just one. In some cases in could be considered an act of war.

  32. The right to burn the American flag as freedom of speech is not a “long-settled argument”. SCOTUS Chief Justice Rehnquist wrote in dissent in the flag-burning case Texas v. Johnson: “The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’…Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

    SCOTUS opinions have been overturned before. Two examples: Dred Scott v. Sandford and Plessy v. Ferguson. The Dred Scott case “was functionally superseded by the Civil Rights Act of 1866 and by the Fourteenth Amendment”. The Plessy case was overturned by a later Supreme Court decision.

    Trump will be nominating a replacement for Justice Scalia, who is most credited by this article with the Texas v. Johnson ruling.

    And there has been a “Flag Desecration Amendment” pending in the U.S. Congress since 1997. It was passed by the House several times but failed each time in the Senate. It would likely have a better chance of passing in the current climate.

    1. So President-elect Trump is in very good company and stands on firm ground in his declarations against flag-burning!

  33. No doubt, flag burning is offensive, perhaps deeply offensive, to some. The Supreme Court has held that such activity constitutes “free speech”, or is another form of “speech”. Until one of two possible things happen, case closed.

    1. The Court changes it’s mind.
    2. The Congress legislates otherwise, which itself might be over ruled by The Court.

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  35. If government punishes people for offending others, that allows any government official to punish anyone he wants. Our founders limited government to protecting us from others who’d harm us, and allowed others the freedom to offend us. Plus, they allowed us the freedom to not associate with people we find offensive, which is something that helps prevent people from being offensive to others.

    I tell social conservatives, they are just like liberals, in that both agree government should punish people who offend others. It’s just that they disagree about what is offensive. I’d rather government not have such power, and social conservatives are free to lead a life they find righteous.

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