Free speech has limits! Why flag burning crosses the line

David Sherdil | Lariat

On Aug. 25, President Donald Trump signed an order telling the Justice Department to go after cases of flag desecration using existing, neutral laws and to press the courts on where the First Amendment actually stops.

For decades, we’ve told ourselves that burning the American flag is allegedly “free speech.” In 1989 and 1990, the Supreme Court by one vote struck down state and then federal laws that protected the flag (Texas v. Johnson and United States v. Eichman). The Court called flag burning “expressive conduct,” even while admitting most Americans are offended by it. Those rulings didn’t make us free. They taught people to show contempt for the country that protects their freedoms.

The new order is a cautious, short-term step. It doesn’t ban flag burning outright. It tells prosecutors to use neutral laws such as arson rules, fire codes, property-damage laws, incitement, and hate-crime enhancements when a burn crosses lines the First Amendment has never covered. That’s how the law already works. You can’t break a law and hide behind the word “expression.”

Words are speech. Burning things is conduct. The law draws that line every day. You can insult your neighbor, you can’t burn his house to express yourself. You can criticize America. You shouldn’t be able to destroy the nation’s symbol in a way meant to degrade the country that protects your right to speak.

The order targets non-speech harms, fire danger, vandalism, intimidation through neutral laws. That’s standard First Amendment stuff. Some lawyers even think the order is too careful because it bends over backward to avoid viewpoint targeting. Either way, the answer is don’t do nothing. The answer is to clarify the law.

Here’s the bigger point the flag isn’t a prop. It’s the shared symbol of a real nation. Laws teach. When the law treats open disrespect for the flag as a test of freedom, it trains people to despise the thing that holds us together. Michael Knowles says we should say the quiet part out loud: make flag desecration a crime even if that means amending the Constitution. If five justices erased common sense by one vote, the people, through Article V, can put it back.

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