Marcos Bretón

It’s awful, ungrateful and unpatriotic. But it’s not unconstitutional

A small American flag is burned outside the White House in the early morning hours of Nov. 9, 2016, the day after Election Day. President-elect Donald Trump said in a Twitter post Nov. 29 that Americans who burned the flag should be jailed or lose their citizenship – though there is direct Supreme Court precedent that it is protected speech under the Constitution.
A small American flag is burned outside the White House in the early morning hours of Nov. 9, 2016, the day after Election Day. President-elect Donald Trump said in a Twitter post Nov. 29 that Americans who burned the flag should be jailed or lose their citizenship – though there is direct Supreme Court precedent that it is protected speech under the Constitution. The New York Times

I hate it when protesters burn the American flag. It’s a destructive, selfish, ungrateful act, one that expresses inarticulate hostility and little else.

Even though my line of work is rooted in the First Amendment and freedom of speech, I’ve long felt that flag burning is a reprehensible gesture.

Why? Because every American flag burned is a repudiation of every American who died in conflicts while defending that flag. Because every American flag burned rejects ideals etched into marble on Washington, D.C., monuments, words such as “government of the people, by the people, for the people,” delivered by Abraham Lincoln during the Gettysburg Address as he was attempting to unite a nation torn by the Civil War.

What purpose does it serve when you burn the flag that symbolizes those words and symbolizes every struggle inspired by those words?

Susan B. Anthony and a generation of early 20th century American women were attacked, imprisoned, vilified, mocked and spat upon while fighting to secure the right for women to vote. Japanese Americans served with distinction in World War II, even though they – and their family members – were rounded up and imprisoned in internment camps throughout California and other states. Years later, African Americans in search of civil rights had German shepherds set upon them. Some were lynched. Some were jailed. Some were shot. Many were beaten or felt the full force of fire hoses as they staged peaceful protests.

Shouldn’t we designate one symbol to that devotion as being sacred? Shouldn’t we protect that symbol from desecration by those whose destructive acts are antithetical to the spirit of all those who fought to make America a better place?

Those questions leaped to mind early Tuesday when Donald Trump, president-elect of the United States, said on Twitter that flag burners should be jailed for a year or lose their citizenship.

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What set Trump off on this subject is anyone’s guess, as are his motives for sharing this information at 3:55 a.m. It seemed to be a random, distracting tweet, one of many that have come from the president-elect.

Flag burning is protected as free speech by the U.S. Supreme Court and has been for decades. The late Antonin Scalia, the controversial conservative Supreme Court justice who is venerated by Trump and who died earlier this year, was a key supporter of flag burning as freedom of expression.

In the landmark 1989 case of Texas v. Johnson, Scalia voted with the majority on a decision that ruled flag burning as speech protected by the First Amendment. A year later, Scalia again joined a majority of justices to uphold the lawfulness of flag burning after Congress tried to circumvent the Johnson ruling.

Why? “To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries,” wrote Justice William Brennan for the majority in Texas v. Johnson.

In other words, protecting freedom from government overreach is more important than any symbol – even the American flag. Personally, Scalia abhorred flag burning. Why didn’t he vote to outlaw it? Because “I am not king,” he said in 2015.

These ideas and ideals are based on centuries of thought and debate and are far more powerful than random thoughts expressed in 140 characters or fewer – even when said thoughts are expressed by the president-elect.

Trump isn’t the first politician to use the burning of Old Glory as political fodder. In 2005, Hillary Clinton co-sponsored a bill banning flag burning when she was a U.S. senator. The bill failed to pass.

The U.S. Supreme Court has upheld freedom of expression for generations, in times far more turbulent and frightening than now. In 1943, at the height of World War II, the court ruled in West Virginia Board of Education v. Barnette that public school kids did not have to salute the flag if they didn’t want to. The court feared that “compulsory unification of opinion” violated the First Amendment.

Personally, I’m not worried about a “unification of opinion” espoused by Trump’s most rabid supporters who validate anything he says irrespective of facts. I’m worried that the facts behind free speech – and our tolerance for dissenting voices – could become a target of “fake news” proliferating online. I’m worried about what will happen if people don’t care enough to do what I did after seeing Trump’s tweet about flag burning: I looked up the legal justification for it. I found a trove of opinions steeped in serious thought.

It turns out, upon reflection, that I agree with Scalia. I personally hate flag burning but understand why it has to be protected. What does that say? That the ideals of America are stronger than my political biases against Scalia. Think about that.

In America, the details matter. In America, every protection and freedom was earned by fighting for it.

Every day on social media, I see Trump supporters who don’t seem to care about facts or details if they conflict with their political biases. And I see Trump opponents whining about how “sad” or “disillusioned” they have become.

If you don’t care about facts, and if you’re too timid to fight for your beliefs, then you do greater damage to America than any flag burner ever could.

Mariya Dyak, of Antelope, a refugee from Ukraine, celebrates with other former refugees after they took the "Oath of Allegiance" to become U.S. citizens at the Tsakopoulos Library in Sacramento on Thursday, October 6, 2016.

Marcos Breton: 916-321-1096, @MarcosBreton

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