The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump Calls for Flag-Burning Bans
CNN reports (and you can hear the remarks at 43:15 of this audio):
President Donald Trump said Monday that he'd support laws criminalizing flag burning, saying in a call with governors that it's time for the Supreme Court to take up the issue again as nationwide protests have intensified over the death of George Floyd…. In Atlanta, protesters burned an American flag in front of CNN headquarters and photographers have captured images of flag burnings in Los Angeles and Washington state in recent days.
Trump, who as a candidate in 2016 proposed jail time or loss of citizenship for burning the American flag, called the act a "disgrace" on Monday and pledged support for an "anti-flag burning" statute.
"We have a different court and I think that it's time that we review that again. Because when I see flags being burned -- they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them," the President told governors, according to audio of the call obtained by CNN. "They're weren't able to do it. They would've done it if we didn't stop them. I think it's time to relook at that issue, hopefully the Supreme Court will accept that…. If you wanted to try to pass a very powerful flag burning statute again -- anti-flag burning, I hope you'll do it because we'll back you 100% all the way. Okay? I hope some of you do it."
As I discussed in detail in a 2009 law review article, Anglo-American law has treated symbolic expression, pictorial expression, and verbal expression analogously since before the Revolution. That notion was well embedded in American law by the time of Texas v. Johnson and U.S. v. Eichman, which held that the government can't target flagburning for punishment; same for the notion that speech can't be restricted just because it expresses an offensive or anti-American viewpoint.
I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result: If anything, the principle that the government can't ban speech based on its viewpoint has gotten even more support from the Court since then. See, e.g., Matal v. Tam (2017), which unanimously struck down a law that didn't even criminalize speech, but simply denied certain kinds of trademark protection based on the viewpoint that the trademark expressed. Nor are President Trump's Supreme Court appointees (Justices Gorsuch and Kavanaugh), I think, especially likely to vote to uphold it.
I doubt then, that any of the governors to whom President Trump was speaking would indeed encourage their friends in the legislature to reenact flagburning bans. (Indeed, I expect the President's proposal, like many proposals made by all sorts of politicians, wasn't genuinely aimed at trying to change the law here.) But if such a ban was reenacted, I'm quite confident it will get struck down, and I don't think that any briefing that the Justice Department would provide in support would change that.
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Since we're talking about symbolic expression, I thought I'd pass along some colorful examples of symbolic expression during the Framing era (though my argument rests on much more specific legal sources):
The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. A leading English holiday, Guy Fawkes' Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a "Liberty Tree" (in that case, a large elm) various effigies, including a "devil … peep[ing] out of a boot—a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act"; "[t]he effigies were then paraded around town, beheaded, and burned." John Jay, coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly "wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold"—a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors."
English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the "King over the Water," which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts—representing Issue 45 of Wilkes' North Briton, which got him prosecuted for seditious libel and made him a star—were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was "eaten from plates marked 'No. 45'"; the Liberty Tree in Boston had its branches "thinned out so as to number forty-five."
Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side's cockades. Some conducted mock funerals for the other side's cockades …. Others raised liberty poles or burned "Liberty or Death" flags stripped from their adversaries' liberty poles. [I would add that stealing flags would certainly be punishable, though because they're stolen, not because it's offensive to burn them. -EV] Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.
