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Justice Scalia on Why Americans Can Burn the Flag

Justice Scalia on Why Americans Can Burn the Flag

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”

Trump’s recent comments about criminalizing the burning of the American flag have anyone who’s read the constitution and appreciates the latitudes protected by first amendment agitated.

Several years ago, Piers Morgan interviewed Justice Scalia who explained why we are able to burn the flag.

From Heavy:

“If I were king, I wouldn’t go about letting people burn the American flag,” Scalia told Piers Morgan in the above interview. “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”

“Burning the flag is a form of expression,” Scalia continued. He later added that burning a flag is an action that “expresses an idea.”

Scalia made similar comments over the years, referring to people who burn flags as “weirdos.”

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king,” Scalia said at Princeton University in 2015.

God bless this man. May he rest in peace.

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Comments

He later added that burning a flag is an action that “expresses an idea.”

But that’s exactly where the argument falls down. Or, more accurately, isn’t made at all. Nobody is criticizing the First Amendment. They’re disputing the bizarre notion that an incoherent action—creating a fire hazard by burning a piece of bunting—is “speech” at all.

If it isn’t “speech” in some intelligible sense, then the question about it being protected speech is a non-starter.

He later added that burning a flag is an action that “expresses an idea.”

Unfortunately, it’s too late to ask him what that idea might be. Intellectual incoherence isn’t an expression of an idea.

    Milhouse in reply to tom swift. | December 2, 2016 at 1:11 am

    They’re disputing the bizarre notion that an incoherent action—creating a fire hazard by burning a piece of bunting—is “speech” at all.

    This is a dishonest argument. Creating a fire hazard is still illegal, and nobody has ever suggested that one can get out of such a charge just because the thing one was burning happens to be a flag. Right now, anyone who burns a US flag in a way that violates the fire code is charged and penalized in the usual way, and no civil libertarian has ever objected to it, or would think of doing so. No court has ever entertained such a defense. It is completely uncontroversial. And it is not what this debate is about.

    This debate that Trump has reopened is about people who burn US flags in a perfectly safe and legal manner, so that if they were burning anything but a US flag nobody would think they were doing anything wrong, but because it is a US flag they’re burning people get upset and want to punish then for it. That was the kind of law that the Supreme Court struck down nearly 30 years ago. Laws that punish an action based solely on the message it conveys.

    Burn an old pair of jeans? No problem. Burn a nazi or confederate flag? We agree with you, and will cheer you on. But if the cloth you’re burning happens to have a specific design, so that by burning it you are conveying the message that you hate the USA and wish it were burning, then we will punish you, because we don’t like that message. That is what such laws are saying, and that is precisely what the first amendment says the laws can’t say.

    30 years ago this was a 5-4 decision. Today it would be 8-0, and if Trump keeps his promise to appoint someone in Scalia’s mold it will be 9-0. His recent tweet justifies wondering whether he intends to keep that promise.

    Casey in reply to tom swift. | December 3, 2016 at 3:09 pm

    If it’s just a piece of bunting then what is your objection? As Milhouse pointed out, there are already laws regarding unsafe fires, etc, so the possibilities are covered.

    I don’t know why so many people get stuck over the concept of free “speech,” in that they insist that actual speech is the only protected form of expression. Justice Scalia covered that as well, by discussing the expression of ideas as well. The fact that you, personally, have trouble understanding the expression lies within you, not the system.

    Nice straw man by the way; burning a flag isn’t an “intellectually incoherent” statement. The usual idea is to express contempt for the United States. I strongly suspect many teens today are communicating nothing more than “I want some attention and to piss people off.”

Frankly, let ’em burn the flag. Maybe they’ll get burnt themselves as a consequence. And of course, showing up to their protest only feeds ’em.
Perhaps there are certain laws that prohibit the open fires they create when they torch the flag. Prosecute them as they would prosecute others.


Of course, that means we get to burn their sacred symbols too…Che & Fidel T-shirts; ISIS flags; Korans; Anarchist flags; etc. Maybe even hang them out there on the range during target practice 😉

But more importantly, we’ll know who the flag burners are, as they’ll be exposed by the fruits of their actions. Better to know your “enemies” than to allow them to stay hidden. And of course, the consequences for their actions that you can ethically and/or legally impose….bonus!

    Milhouse in reply to profshadow. | December 2, 2016 at 1:15 am

    We already do get to burn those other symbols, and nobody even thinks of banning it. Everyone understands that this is protected expression. But somehow when the US flag is involved people suddenly want to create a new exception to the first amendment. And that is the danger in this: once the principle is established that the court can create new exceptions, there’s no limit to how many more it may create. Every time some kind of extremely unpopular speech comes up, there will be calls for the court to create an exception, and the first amendment will become as useless as its Canadian equivalent.

thalesofmiletus | December 1, 2016 at 11:42 am

Trump’s recent comments about criminalizing the burning of the American flag have anyone who’s read the constitution and appreciates the latitudes protected by first amendment agitated.

Agitation is the point — you’d think after months of such campaigning culminating in the greatest upset win in a generation the point would be so obvious as to be assumed: trolling the media for free publicity. Just in time for the President-Elect to begin his “Thank You Tour” to his base in the battleground states who’d respond favorably to this agitation. 🙂

“If it isn’t “speech” in some intelligible sense”

A baker refuses to make a wedding cake for a gay couple because doing so forces him to use his artistic “speech” in support of something that violates his moral conscience.

And as a former Marine, flag burning is highly offensive. Rises to the level of “fighting words”. Not only do I want to see their asses get kicked, I want set THEM on fire…

BUT its the canary in a coal mine – the day we make it illegal to disrespect the symbols of this nation is the day we ALL lose an important piece of Liberty.

So I grudgingly support the act of flag burning.

    Casey in reply to Fen. | December 3, 2016 at 3:16 pm

    The concept of “fighting words” was raised when the issue was before the Supreme Court. As I understand it, the legal definition means an expression which causes a reaction one is incapable of controlling, like talking about someone’s mother, then getting slugged.

    The fact that you, as a former Marine, can prevent yourself from beating some smelly hippies up over the issue pretty much proves that “fighting words” are not involved. 🙂

I don’t suppose it occurred to anyone here that Trump is actively trolling the opposition with these tweets?

Teh Donald makes some outrageous statement, then the usual suspects go librarian-poo proving his point. In this case, a bunch of unhinged idiots promptly surrounded Trump Tower and started burning flags, making them look even more unhinged than before.

So can I draw a picture of Muhammad, because it expresses an idea? I know I’ll get shot at or stabbed, but can I do that? THEN … then can I burn it?

Did they get a burn permit?

What about defacing money?

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