Flag Burning and Stolen Valor

| June 3, 2020

The StamfordAdvocate writes that President Trump is wrong when he claims that the Supreme Court would allow for a flag-burning statue.

Trump says the Supreme Court would allow a ‘very powerful flag-burning statute.’ He’s wrong.

President Donald Trump returned to a long-dormant political debate in Monday’s call with governors. He assured the governors that “I’m not a believer in flag burning,” and suggested that the states should pass a “very powerful flag-burning statute” with “strong punishment.” The president promised that the administration would “back you 100 percent,” and mused that “we have a different court” that “will accept that.”

Here’s what’s going on.

– Flag burning is an old controversy

Once again, Trump was reaching back to old culture war issues to see whether they still had political life. The background is that states once had statutes prohibiting the desecration or burning of the American flag. As the U.S. Supreme Court expanded First Amendment jurisprudence over the course of the 20th century to protect a wider range of expressions of political dissent, it became doubtful that these prohibitions were constitutional.

Then…

Trump has suggested that the court is “different” today and would be more willing to uphold a flag-burning law. He is almost certainly wrong. Back then, four justices wanted to uphold such laws, including the left-leaning Stevens, centrist Democratic-appointed Justice Byron White, and Republican-appointed Justice Sandra Day O’Connor.

None of the current justices were on the bench in 1990, but it seems very doubtful that there are even four votes to be found on the current court to uphold a revived flag-burning statute. When the Roberts court heard a case involving the notorious Westboro Baptist Church’s picketing of the funerals of fallen soldiers, only Justice Samuel Alito thought such demonstrations were beyond the constitutional pale. Chief Justice John Roberts favorably cited the Texas flag-burning case in writing the court’s opinion protecting the picketers.

The Roberts court has ruled similarly on other cases, including the Stolen Valor Act (which sought to prohibit people falsely claiming to have won military honors); a federal statute banning videos depicting animal cruelty; and state restrictions on the sale of violent video games. When the Roberts court struck down a provision of the federal Lanham Act that excluded trademarks that disparaged people, beliefs or national symbols, no one dissented. Notably, conservative justices have often favorably quoted the flag-burning cases in their opinions.

A justice or two on the current court might think that the national interest in preserving the U.S. flag from desecration outweighs the general principle that dissidents’ expression of their beliefs should be protected no matter how unpopular their message. But outlawing flag burning would take more than one or two justices. Trump’s confidence that the justices would be in his corner may well be misplaced.

Maybe they will eventually decide that looting is free speech and a form of protest?

Category: Politics, Stolen Valor Act

Comments (45)

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  1. 26Limabeans says:

    Thanks for the reminder. I have several flags in
    storage awaiting ceremonial disposal by fire.
    The local American Legion holds a ceremony this
    time each year but they are closed because of….

    This year I will do it myself. Oh shit, can’t
    get a burn permit because of…..

    Well, maybe I can sell them to some worthless
    piece of shit America hating Democrat thet will
    burn them for me. They don’t need no stinkin permit.

  2. 5th/77th FA says:

    I think they have already decided that looting is free speech and a form of protest. Just as is the use of Taxpayer monies to murder babies. Or to lionize murders. Teddy got away with a twofer, didn’t he? But then I digress. Sure, your free speech gives you the right to burn the Flag of Our Republic. My don’t give a damn gives me the ability to have a little “chat” with them on the subject of their “free speech” choices. I’ll let a baseball bat do most of the chatting.

    At the rate the domestic enemies of our Republic are going, they will try to do away with Old Glory completely for either, no flag, or a Rainbow/BLM/Flag of the Month design. Or maybe one with farting unicorns. It’s sad that the Greatest Republic the World has ever seen is being destroyed from within. By its own system and laws.

  3. Ex-PH2 says:

    I think that flag burning was tested in the 1960s re: the Vietnam war protests, but I don’t think it went all the way to the Supremes.

    • OWB says:

      It went to the Supremes in the 80’s following a flag burning incident in Dallas. The PD wrote up some protestors for burning the flag just because it was a flag. Had they ticketed the protestors for burning in public in general, it likely would have been upheld. It was against the law to burn anything (like a stack of styrofoam cups at a rock concert, trash, newspapers, leaves etc) in public without a permit and that law had been upheld multiple times.

    • Ex-PH2 says:

      I wondered about that. Thanks for the tip!

  4. 26Limabeans says:

    “destroyed from within. By its own system and laws”

    Just as Krushchev promised while banging his shoe
    on the desk at the UN. My mom wept in front of me.

  5. MI Ranger says:

    Yes, and so was Rome! While the actual burning and looting was carried about by the Guals, the people voting themselves privileges is what destroyed Rome. They had lost their will to fight, and only wanted to be protected…but by whom, no one was willing to do it!

    • Slow Joe says:

      Wow. Worst historical simplification I have ever seen.

      Gaul was conquered by the Romans by 50 BCE. The famous Julius Caesar was the commanding officer throughout the 8 years of the Gallic Wars.

      During the 4th and 5th centuries CE Proto-Germanic and Proto-Slavic tribal invasions which led to the fall of the Western Roman Empire, the old tribes of Gaul had long been assimilated, speaking Latin and serving honorably in the Roman legions for centuries. When the Franks conquered Gaul from Rome, some of the Frankish tribes have been already living on the Roman side of the border for at least a generation. That’s why the base of the French language is a mix of Latin and Frankish, which was a Germanic tribal dialect. But the Gallic people, their language and their culture had been gone long before that.

      The historiography of Gaul is difficult because they didn’t have a written language and almost all we know about them is through Roman eyes, who assimilated them rather quickly, in a matter of a few generations. The Romans were excellent at assimilating other cultures.

    • Ex-PH2 says:

      ACtually, it was the Goths (from northern Europe) who destroyed Rome. In 476 C.E. Romulus, the last of the Roman emperors in the west, was overthrown by the Germanic leader Odoacer, who became the first Barbarian to rule in Rome.

      • Slow Joe says:

        I know many historians see Romulus Augustus as the last western emperor, but the reality is that Romulus was a 15 year old kid put in place by his rebellious father Orestes, the Magister Militium or senior military commander of the military, who was in rebellion against the last western emperor, Julius Nepos.

        Now, the last two western emperors, some guy with a greek name that preceded Nepos and Nepos, were appointed by the Eastern Roman Emperors. The Eastern Emperors saw the West as a vassal state.

        So, the Eastern Emperor appoints Julius Nepos as Western Emperor, then the Western army commander, Orestes, rebel partially successfully, takes control of Italy, but Nepos retains Dalmatia and other small regions, and Orestes put his son Romulus on the throne, but Romulus is never recognized by the Eastern Emperors or other leaders in the empire, so Romulus Augustus is not a “real” emperor, but a puppet of his father. And Nepos is still alive, but supposedly Romulus is Emperor because his name is cooler.

        Then Odoacer, who was a roman army officer and then leader of the federation of gothic tribes allied with Rome, decide he wants his pound of flesh and ask for lands in Italy to settle more goths, to which Orestes says no, and Odoacer invades Italy, defeat and kills Orestes, but pardons Romulus and let him go.

        To top it off, Nepos is still alive in Dalmatia, so the real western emperor is alive and well, which is why Odoacer takes the title of King of Italy rather than emperor. Odoacer ruled independently, but was legally a vassal of the empire, going as far as to print coins with his face and that of Nepos.

        When Nepos, the real last emperor died in, I think 480 CE, the Eastern Emperor officially retained the tittle for himself and refused to appoint another Western Emperor.

        And Odoacer never sacked Rome. On the contrary. The Roman Senate worked with him.

  6. Toxic Deplorable Racist SAH B Woodman says:

    Sen Orrin Hatch wanted to make & pass a Constitutional amendment back-in-the-day.
    That was when I realized that his cheese had fallen off his cracker & run away.
    I despise US flag burning, but I despise even more unConstitutional laws.

    If you want to see what is sacred to whom, burn a flag & watch for the reaction.
    (burning US flag)
    Libtards: YAAAAAAAHHHHH!
    (burning rainbow flag)
    Libtards: RACISSSSSS!
    (burning muzzie/ISIS flag)
    Libtards: HOW DARE YOU!!

  7. Wilted Willy says:

    I’m sorry, but I’m afraid I would have to shoot to kill any asshole that I might see doing anything of disrespect to Old Glory!!!
    Long May She Wave!!!!!!!

    • Ex-PH2 says:

      Well, just give him/her/it a warning first, Willy. Yell loudly and fired off a couple of rounds into the ground near its feet.

    • 11B-Mailclerk says:

      Seriously? Under the current circumstances you say something like that?

      That was wrong. It was dumb. Also it was tantamount to announcing you intend to commit murder.

      C’mon, man.

    • Honor and Courage says:

      Exactly, Screw Rome, Democrats, Communists , Socialist, and Idiots. I’m old but I can still carry a case of 00Buck, and have a couple on hand. Burn my Flag, or mess with my Family, You may need 911 but there will be no reason to hurry!

  8. USMC Steve says:

    Two things are commonly misinterpreted that really piss me off. The actual meaning of the First amendment as it is actually read, and free speech where burning of the flag is included. There is no coherent message involved in burning our flag. Perhaps that is a nonverbal way to say they hate America. All that is involved is behavior seeking to aggravate people and piss them off, generally seeking some sort of reaction from them. That is called in some places inciting a riot. It isn’t any form of free speech, perhaps “free expression”. And in fact, if that is freedom of speech, then the predictable assault on those doing it should also be protected speech. Both are actions that ostensibly demonstrate an opinion.

    • gitarcarver says:

      So you believe that an act or message that does not harm or threaten you should be met with physical violence? Is that really where you want to go?

      In the 1980 case of Eichman v. United States, the Supreme Court opined (citing Johnson v. Texas):

      “[I]f we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be . . . permitting a State to ‘prescribe what shall be orthodox’ by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.”

      In Matal v. Tam (the “Slants” case from 2016) the Court reiterated the meaning of the First Amendment: [b]ut the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v.
      Schwimmer, 279 U.S. 644, 655 (1929)

      And in a concurrence by Justice Kennedy:
      A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion
      in a democratic society.

      If one allows that the burning of a flag can be restricted, then one must allow that laws that ban the flying of the flag because of the “offensive” ideas it symbolizes must be legal.

      And that’s the problem.

      We can’t allow politicians to decide what we can and cannot say or what ideas we can and cannot express.

      • d says:

        Johnny Cash famously talked about “our freedoms – which include burning the flag.” (Boos) “Now hush…shhhh… but we also have the right to bear arms, and if you burn my flag I will shoot you. With all the love an American should have!”
        from the intro to “Ragged Old Flag” on “The Highwaymen Live”.

      • 11B-Mailclerk says:

        Some places recognize “fighting words” doctrine

        Something so egregious as to incite a fist, and thus defensible to throw the fist.

        • 11B-Mailclerk says:

          A minefield, yes.

          But is flag burning “fighting words”. To many, yes.

          One fist in anger, non-lethally, not a bullet or knife, is usually the ” fighting words” limit.

          I -prefer- that some things be not said or done. Not sure I want my political opponents enforcing it.

          Think about one of our resident trolls getting to decide.

        • gitarcarver says:

          “Fighting words” applies to specific words towards a specific person and not the general act of something such as a flag burning.

          In Cohen v. California, a man wore a jacket into a courthouse with the words “F*** the Draft.”

          The state argued that Cohen’s jacket constituted fighting words under Chaplinsky. The Supreme Court disagreed, writing in its 1971 ruling that the words on the jacket were not a “direct personal insult” and that no one had reacted violently to the jacket.

          In oft-cited language, Justice John Paul Harlan wrote:

          “For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves manners of taste and style so largely to the individual.”

          The doctrine of “fighting words” would not apply to a generic, non-specific act toward another such as burning a flag.

          • 11B-Mailclerk says:

            A burned flag is as directed a message as a burned cross. Both can reasonably seen as intimidation or threat.

            • gitarcarver says:

              A burned flag is as directed a message as a burned cross.

              Obviously not.

              Are you saying that the burning of a flag that has reached the end of its life (as done by VFW’s all over the land) is a “directed message?

              At whom?

              Both can reasonably seen as intimidation or threat.

              Great. Make sure to inform your local VFW that they are threatening and trying to intimidate people.

              You don’t like the expression – the idea – that someone is expressing in the burning of a flag. You’d stifle expression and then claim that you believe in the First Amendment.

              You don’t.

              • 11B-Mailclerk says:

                I am clearly stating that both cases, cross burning and flag burning, are either reasonably believed to be directed and threatening, or neither can be.

                The government doesn’t get to decide which statement of hatred is prohibited, and which is allowed. If one can burn something as a protest, either it is threatening or it is not. Allowed or not.

                Arson is threatening. Uncontrolled burns are threatening. Ever been downwind of someone’s fire-f##kup? Ever been the target of some Yahoo weilding fire? Did the dipshits have an extinguisher? Clear out combustibles and bystanders? A f##cking plan? Fire doesn’t care. Ask a Boy Scout.

                Ask the firemen here in this forum, Hm?

                Or, it’s a no call, and dipshits of all stripes get to set small manageable fires in protests, judged by the management of same and likely combustion hazards, and if anything is expressed to the effect of “you, there, are next”.

                Where, by the way, did I say “ban flag burning” in this thread ? Hm?

                I am in favor of removing the obscenity of “hate crime” from our legal lexicon, as it is patently obvious to be “some are more equal than others” and a blatant “thought crime”.

                And -blatantly- unconstitutional.

                If flag burning as a protest or message is a no call, so are other dipshit “burning” acts. If it -is- prohibited, so are a whole bunch of other “burning” dipshit acts.

                I do think the burning of objects, as protests, are stupid and counter-productive. Also stupid-hazardous. If “setting fires” is prohibited, no need to argue content. Fire is an understood hazard, and threat. Or, they can burn dumpsters or other handy objects. The content of protest cannot be the determinant of what is and is not allowed to be protested.

                We do prohibit some content outright, like kiddie porn. The 1st has precedent of limit. We prohibit directed, actionable, immediate threats.

                So “burning symbols at protests” is an area where we must ensure that either “no” or “yes” is based on neutral conditions, and -not- on who is or is not outraged.

                Neutral. Objective.

                More simply, it’s the

                -irresponsible use of fire-

                to which I -legally- object.

                Burning other people’s symbols is often stupid, f##kheaded, and counterproductive. But the government -doesnt- get to say some irrational hate is OK and some is not.

                • gitarcarver says:

                  I am clearly stating that both cases, cross burning and flag burning, are either reasonably believed to be directed and threatening, or neither can be.

                  And you are clearly wrong.

                  If you don’t see the difference between burning a flag you own on your property or in the public square as a form of general protest not being the same as burning a cross on someone elses property with the intent to intimidate, there is no point in continuing this conversation.

                  I am in favor of removing the obscenity of “hate crime” from our legal lexicon, as it is patently obvious to be “some are more equal than others” and a blatant “thought crime”.

                  I go over this in a post below. There is no “some are more equal than others” in hate crime legislation. “Protected classes” is employment law, not hate crime law.

                  We do prohibit some content outright, like kiddie porn. The 1st has precedent of limit. We prohibit directed, actionable, immediate threats.

                  Are you really trying to equate the burning of a flag with kiddie porn? Are you really tying to say that burning of a flag is a “actionable, immediate threat?” If so, to whom?

                  If you want to claim that fire, in and of itself is a threat, we need to shut down every home with a gas stove, or water heater. Every restaurant needs to be shuttered. We need to outlaw barbecues in the back yard and in parks.

                  But even if you want to stick with the ridiculous assertion that we must ban fire, do you have any data showing how many flag burnings have caused damage to property or people?

                  Burning other people’s symbols is often stupid, f##kheaded, and counterproductive. But the government -doesnt- get to say some irrational hate is OK and some is not.

                  You were the one that claimed that flag burning met the standard of “fighting words.” That’s a standard set by the government so you either have to conclude that your statement that flag burning is akin to “fighting words” or you have to show that burning a flag is likely to “produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance” and or will inspire “imminent lawless action and is likely to incite or produce such action.”

                  Luckily for those of us who truly believe in the First Amendment, the Supreme Court says that flag burning in protected speech and does not rise to the level of “fighting words.”

                  Quote: “In Street v. New York (1969), the Supreme Court relied on the First Amendment to overturn the conviction of Sidney Street, who, upon hearing of the assassination of civil rights activist James Meredith, burned a U.S. flag and was arrested and convicted of violating a New York law that made it a misdemeanor to “publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag either by words or act.”

                  The Court observed that while “it is conceivable that some listeners might have been moved to retaliate upon hearing appellant’s disrespectful words, we cannot say that appellant’s remarks were so inherently inflammatory as to come within that small class of ‘fighting words.’ ”” Unquote.

        • Ex-PH2 says:

          I “flag burning” fighting words?

          That depends on what flag is being burned, doesn’t it?

          • gitarcarver says:

            That depends on what flag is being burned, doesn’t it?

            No.

          • Ex-PH2 says:

            Oh, yes, it does depend on exactly that. You assume incorrectly that I’m referring to the American flag, when I’m not.

            I said clearly ‘depends on what flag is being burned’. Clearly “a flag being burned” can be a road construction worker’s warning flag or it can be a national flag – ANY national flag, ANY country – or it can be a piece of plain old cotton tied to a pole with no markings on it, as in a signal flag to alert searches to where you are.

            You can quibble about that all you like. There ARE differences. Period.

  9. Mike B USAF Retired says:

    I’m probably going to get flamed by someone, but here goes……

    Why is the burning of a BLM, LGBT or any movement flag considered a “Hate Crime”, while the burning of Ole Glory our Nations Flag is considered “Freedom of Speech”?

    Talk about double standards, double talk and total BS.

    • gitarcarver says:

      Because the burning of a “BLM, LGBT or any movement flag” is not by itself considered a “hate crime.”

      A good example of this is “cross burning” which has powerful connotations of racism, but in the 2003 case of Virginia v Black, the Supreme Court ruled that the mere burning of a cross is protected speech and within the meaning of the First Amendment.

      Cross burning only becomes illegal when there is an accompanying act of intimidation or threat.

      In other words, burning a cross as part of a KKK gathering is protected speech. Burning a cross on property owned by a black church in order to intimidate church members is not protected.

      People that scream that the burning of a “BLM, LGBT or any movement flag” is “hate speech” are completely wrong and should be ignored in their ignorance.

      • SFC D says:

        I’m 100% against anything being labeled a “hate crime”. If you beat somebody up, is is assault and battery. If you beat up a minority or other “protected class”, it is now a hate crime. You have now procalimed that this person’s life is more valuable than that person’s. That is not equality. A crime is a crime and penalties shouldn’t vary based on race, gender, sexual orientation, or phase of the moon.

        • 11B-Mailclerk says:

          Equal protection under law.

          Same penalties, regardless of victim.

          Hm

          Elder abusers and kiddie diddlers.

          Hm

          I am having a disconnect here. The former statement seems axiomatic. The latter two cases suggests two timbers and some nails.

          Hm.

        • gitarcarver says:

          “Hate crimes” are in essence two different acts and therefore a separate crime.

          For example, assume there are two people walking along a street on opposite sides of that street.

          A gang wants to beat up one of the people because that is what gangs do.

          Whichever person is attacked and beat up is one charge. The “enhancement” or “second charge” comes into play when the person to beat up is chosen because of the victim’s race, religion, color, disability, sexual orientation, national origin or ancestry. It is because the illegal action did not treat all people equally that the laws exists.

          Assume for a moment that a group of black youths come out of a movie theater and one of the youths says “Do you all feel hyped up to move on some white people? . . . There goes a white boy; go get him.”

          The gang goes after the white man and beats him so badly that he is in a coma for 4 days.

          The youths are charged with the crime of assault and a hate crime because they chose their victim based upon his race.

          That being said, that is not a hypothetical case. The case is Wisconsin v. Mitchell (1993)

          A group of black youths beat a man simply because of the color of his skin. For the crime of assault, they were given sentences of two years for the assault and another two years for the hate crime.

          Finally, in most states and at the Federal level, hate crimes are not limited to “protected classes” of people but for all people if the crime is committed on the basis of the victim’s race, religion, color, disability, sexual orientation, national origin or ancestry.

          (Which is shown in the Wisconsin case in which a group of black men set upon a white victim. Even cases of the infamous and despicable “punching game” of a few years age where blacks were punching people of other races because of their race received enhancements in the charges. We just hear more about “hate crimes” against so called “protected classes” and think that is the norm when it is not.)

          • SFC D says:

            Assault is assault, battery is battery. People are people. We punish the crime, not the motive. This is how we create “protected classes” and keep lawyers in business. If I rob a poor man, should I be punished more than if I rob a rich man who can absorb the loss?

            • gitarcarver says:

              Actually, we do punish motive. Murder in the first degree is punished differently than that if murder in the second degree or even the third degree. The distinction is the intent (ie the motive.)

              • 11B-Mailclerk says:

                Intent to murder does not involve determining classes more protected than others.

                “Hate crimes” do create such classes. Otherwise all crime is hate crime or no crime is hate crime.

                Upping the penalty because of what someone thinks about a group is -not- equal protection under law. Quite the contrary. It is the return of laws of commoners and laws of nobility. That is expressly prohibited, here.

                • gitarcarver says:

                  Intent to murder does not involve determining classes more protected than others.

                  The laws don’t read that way.

                  The laws for hate crimes don’t read “this group is a protected class and this group is not.”

                  As I said, the original “hate crime” case was when a bunch of blacks attacked a white man. They were found guilty and the hate crime aspect was found to be Constitutional.

                  You aren’t really trying to say that white males are a “protected class,” are you?

                  “Protected classes” are part of employment law, not hate crimes.

  10. Huey Jock says:

    The law should read “He who cudgels the burner of the Flag shal not be prosecuted’.

    Don’t shoot the bastard. They would blame the gun.

  11. Bob says:

    The flames are still burning on my rear end because both Trump and everyone here keeps lighting it on fire every time I try to start things with you guys.

    FIXED.

  12. 26Limabeans says:

    Remeber when people had burning convictions
    about their protesting? Those were the days.

    https://rarehistoricalphotos.com/the-burning-monk-1963/