Vail Daily column: The Constitutional right to burn the flag
Few of us like it. The burning of an American flag, the symbol of democracy for which patriots have fought and died, is abhorrent to most right-thinking people. But in a free and open democracy, we must often tolerate what is offensive. It is a right of free speech, a right assured under the First Amendment to the Constitution. It is as apple pie as apple pie.
As you likely know, the president-elect recently ignited (forgive the pun) a firestorm when he suggested in a hazy midnight tweet that those who burn the U.S. flag should be subjected to potential imprisonment or, more extremely, loss of citizenship. No, Mr. Trump, however much I might agree with the visceral distaste of seeing the symbol of our nation burned, you are simply and profoundly wrong. And both the Constitution and the United States Supreme Court stand on my side.
The First Amendment — which by the way is “first” and, therefore, presumably of preeminent importance — provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These are the holiest of holies: the right of freedom of (and from) religion; the right to peaceably assemble; the right to seek redress before the government; freedom of the press; and the right to free speech.
It has long-ago been determined that “speech” is more than simply words, whether written or spoken; it includes signs, gestures, symbols, art, depictions and acts of expression and, especially, includes speech critical of government.
Not only is the right to free speech — which includes flag burning as a form of protest or expression — ensconced in the Constitution, the right has been affirmed by the Supreme Court. Even jurists as conservative as the late Antonin Scalia recognized the free speech right of flag burning however repugnant it might be.
The Supreme Court has twice affirmed the right to desecrate the American flag as a form of free speech, in 1989 and again in 1990. In the 1989 case, Texas v. Johnson, the Supreme Court ruled that flag burning was a form of “symbolic speech” protected by the First Amendment.
Gregory Lee “Joey” Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas. Protesting certain Reagan Administration policies, the demonstrators marched through the streets, shouted chants, destroyed property, broke windows and threw trash. At one point, another demonstrator handed Johnson an American flag stolen from a flagpole. When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire.
Johnson was charged with violating a Texas law that prohibits vandalizing respected objects (desecration of a venerated object). He was convicted, sentenced to one year in prison and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. On appeal to the Texas Court of Criminal Appeals, the court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.
When it came up before the United States Supreme Court, the Supremes ruled for Johnson. In a concurring opinion, Justice Kennedy summed it up nicely, writing that, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
Joining Kennedy in the majority were Justices Brennan, Marshall, Blackmun and Scalia.
In 1990, in United States v. Eichman, the court reaffirmed the right to burn the flag when it ruled the Flag Protection Act of 1989 — passed by Congress in response to the Johnson decision — was unconstitutional. So there you have it; considered, ruled and done.
Appointing new justice
It is worth noting, above, that both the Johnson and the Eichman cases were decided by a bare majority; both were 5 to 4 decisions. What this could potentially tee up when a new justice or two is appointed is open to both speculation and some worry. If Trump appoints a justice in the Scalia mold, would that justice side as Scalia did with a pro free speech majority? Could the court abridge or limit this fundamental right? And if it did so, would that be the first skid down a slippery slope?
What about Mr. Trump’s veiled reference to the penalty of losing one’s citizenship?
In simple terms, no. The Constitution does not permit the government to expatriate Americans against their will. In the landmark 1967 case of Afroyim v. Rusk, the Supreme Court called citizenship and the rights that stem from it, “no light trifle to be jeopardized any moment” by politicians’ attempts to curtail it. The Court said that the 14th Amendment, which guarantees due process of law, does not empower the government to “rob” someone’s citizenship. Americans, the ruling laid out, can only lose their citizenship by voluntarily renouncing it.
“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship,” Justice Hugo L. Black wrote.
The Court affirmed Afroyim in the 1980 case of Vance v. Terrazas. The government may not revoke citizenship; instead, one must specifically and intentionally relinquish it.
Was Mr. Trump serious or simply in a pique over some goblin in the night? Only time will tell. What is sure, though, is that certain rights, while not utterly inviolate, are so fundamental to our place and being as people that to tamper with them is to threaten democracy itself.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.
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