Reheating the Hot Button of Flag Burning

Mark Davis
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Posted: Nov 30, 2016 12:09 PM
Reheating the Hot Button of Flag Burning

Well, look what’s back: the instantly compelling and ultimately confounding parlor game of “What do we do about flag burning?”

Dormant for years, largely because this is something virtually no one ever does, the flag burning issue is back.  You could hear it knocking lightly when several idiotic pro athletes decided to lodge their concerns over policing issues by showing public disdain for the flag that is a symbol of the nation that has made them free and wealthy.

Throw in the Donald Trump victory, which has dredged up some of the most hateful and juvenile reactions in election history, and the atmosphere thickens.  The final ingredient: a Tuesday Trump tweet proclaiming that “Nobody should be allowed to burn the American flag -- if they do, there must be consequences -- perhaps loss of citizenship or year in jail!”

My head hurts.

Memories rush in from the talk shows I was doing in 1989, the year of the infamous Texas v. Johnson case, in which a cretinous young Communist named Gregory Johnson burned a flag at Dallas City Hall during the Ronald Reagan second-term nominating convention down the street.

The Supreme Court’s job was to determine whether flag-burning is constitutionally protected free speech.  The 5-4 decision, made possible by the late Antonin Scalia’s reliance on his libertarian DNA, found that laws against “desecration” of the flag are a violation of rights.

It is always perilous to compile a list of things Americans should not be able to do simply because they are so infuriating.  The thing that angers me may empower you; the thing we outlaw today may silence you tomorrow.  If you envision banning only the things which are truly poisonous, hurtful, hateful and without merit, I invite you to meet the American Left, which is marching toward defining your Biblical beliefs and mine in exactly those terms.

The four dissenting justices did make a strong case against free-speech designation for flag-burning, calling it a substantial stretch to elevate a vulgar gesture to the level of the protected speech the founders sought to protect.  They were right to point out that Gregory Johnson and every other flag-burning idiot since are not exactly the philosophical descendants of Thomas Paine.

So my desire today is to sidestep completely the gnashing standoff over whether the execrable act of flag-burning should be forbidden by law.  Instead, I’ll share why it is a useless exercise to try.

The Trump tweet surely energized millions in his base who enjoyed the notion of consequences raining down on the chowderheads who choose to communicate through flag desecration.  I confess that it struck a chord with me as well.

But if we examine how such penalties might be crafted, we run into multiple brick walls of impracticality.  The moment we put our toes into the pool of outlawing flag-burning, requirements instantly arise.  The first if the definition of terms.

So what is an American flag, anyway?  Would the law define it as a fabric rectangle featuring thirteen alternating red and white stripes with fifty stars in nine offset rows in a dark blue field in the corner?

Great.  Meet the scrubby entrepreneurs who would immediately manufacture completely burnable flags, manufactured to skirt the law by virtue of eleven stripes, or forty stars. But wait, you may say.  Let’s just make it illegal to burn things that look like a flag.

That should work out just great.  I’ve seen clothing items that feature just enough striping and starring that some malcontent could torch one and spark a torrent of 911 calls.  The precision necessary to make flag-burning laws coherent is the very characteristic that makes flag-burning laws impossible.

So is there no recourse for those of us interested in stemming this disgusting behavior?  Sure there is.  Setting fire to anything in a public place would seem proscribable on a safety basis.  If I were at your town’s city hall, could I set fire to a bedsheet in public?

But we all know it’s the flag imagery that makes this issue both literally and figuratively incendiary.  On that point, I go back to a talk show call I took from a veteran in Memphis, where I was working at the time of the ruling.  “I have a feeling I went to war to protect all kinds of things that might infuriate me,” he began. “But I wonder if this couldn’t be included under laws we have against inciting riots.”

I asked whether he thought a flag-burner could be broadly defined under law as necessarily seeking to spark violent unrest.  As the issue returns to the headlines, I can still hear his reply to me: “Mark, I can’t tell you what lawyers might say about what does and does not incite a riot, but I’ll tell you this: if somebody burns a flag in front of me, I’ll start a riot right on top of his ass.”

Might not be a helpful story, but I sure enjoy telling it again.