Burning Flags Property for Freedom

Friday, August 24, 2007
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Jeff Tucker makes a comment on the Mises blog regarding someone on ZDNet who said that the Mises Institute is the “flag carrier for official libertarianism.” His snappy comment is that “of course if you own the flag, you can burn it.” Point well taken.

The whole notion of ignoring property rights in favor of emotional/symbolic rights (on the topic of flag-burning) reminds me of the t-shirts and patches that the “patriotic” Harley types – who I ride with – wear all the time. These patches, shirts, or even helmet stickers have the American flag on them, and beneath the flag it says, “Try to burn this one a**hole.” Well, uh, no, one shouldn’t try to burn and thus destroy another person’s property. But then again, the fatal failure of this argument against flag-burning is complete ignorance of property rights in favor of an appeal to some strange notion of collective emotional rights. So, to the uninformed, there is no difference between burning a flag that I purchased and therefore own, or burning a flag that is on a t-shirt or patch that you own and wear.

How can such a simple concept be so twisted and mutilated to the point where, to most people, destroying material property that you own becomes a crime against humanity? The Supreme Court believes the act of burning an American flag is protected by the First Amendment right to free speech. In the famous Texas vs Johnson case, where Gregory Johnson burned a flag in the streets outside of the 1984 Republican National Convention in Dallas, Texas, Justice William Brennan stated, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

The state of Texas had tried to crucify Gregory Johnson because his disposal of the government’s symbol on cloth was “a severe act of physical abuse of the flag carried out in a way likely to be offensive.” And the best that the Supreme Court of the United States could do was protect the burning of a flag – any flag – as a form of “symbolic speech.” It is said that Johnson “accepted an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.” Then why wasn’t case a much more simple process to convict the thief whole actually stole the property? Indeed, no one cared about the actual property theft and destruction because there could be no political-nationalist agenda behind such an act. Rehnquist says, “Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.”

NOTE: Justice Stevens, in his dissent from the Court’s opinion, states: “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

I respectfully dissent.”

Justice Rehnquist’s dissent engages the greatness of Abraham Lincoln and the defeat of the South by the mighty Union as a reason to uphold the historical greatness that is represented by the flag. He also says, “Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”

This is why we need not be “Constitutionalists.”

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