“(T)he flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit.” But standing for freedom, the flag stands for the freedom to dissent, most offensively, as Justice Kennedy recognized. In his concurring opinion, Kennedy acknowledged the symbolic power of the flag and the dismay occasioned by its desecration. Johnson, (and is the only justice still on the Court who participated in that case.) He voted to strike down the flag desecration statute in Texas v.
And Justice Anthony Kennedy is a fairly reliable defender of free speech. Still, Chief Justice John Roberts has voted to uphold the right to disseminate deeply offensive speech, including animal crush videos and the vicious anti-gay rhetoric unleashed by the Westboro Baptist Church at military funerals.
Trump seems likely to nominate a ninth justice who shares his disregard for free speech (and the Senate seems poised to confirm his nominee.) Justice Scalia’s vote protecting the right to desecrate a flag would be replaced by a vote denying it.
Johnson, for example, the conservative Justice Antonin Scalia voted to protect flag burning and the more liberal Justice John Paul Stevens voted to allow its prosecution. The Court does respond to cultural trends, and Trump’s reign could conceivably unleash extreme nationalist fervor, identifying protecting the flag with protecting the nation.įree speech cases don’t necessarily divide the Court along the usual liberal/conservative lines. Would the Supreme Court strike down this bill if enacted? A majority of justices might hesitate to reverse the 1989 ruling protecting the right to burn the flag, but they might also distinguish imposing civil penalties on institutions for not raising the flag from criminally prosecuting people who disrespect it. Trump’s reign could conceivably unleash extreme nationalist fervor, identifying protecting the flag with protecting the nation. Voting against a bill to “protect” the flag can be politically treacherous, and many members of Congress may choose the path of least offensiveness when confronted with Turner’s bill. But a statute restricting speech will arouse much less committed opposition than a constitutional amendment. Current Senate Majority Leader Mitch McConnell was among those who opposed the amendments, and he reasserted his support for the rights of flag burners after Trump declared they should be prosecuted. After the Court upheld the right to burn a flag, the House of Representatives passed numerous constitutional amendments that would have permitted the criminalization of flag desecration, but the Senate narrowly rejected all of them. Prospects for his censorious bill are uncertain. The congressman, it seems, is a snowflake. He wants the government to punish private institutions engaging in political speech he finds offensive. Raising the flag and burning it, trampling it, wearing it or simply lowering it are exercises of free speech, constitutionally protected, as the Supreme Court affirmed in 1989 when it struck down a Texas law criminalizing flag burning.Ĭongressman Turner is committing a blatant act of attempted censorship. In fact, Hampshire simply committed a blatant act of speech, obviously. The flag is a “symbol of freedom,” and Hampshire College committed a “blatant act of censorship” in taking it down, Turner explained, revealing either his sheer stupidity or a diabolical understanding of Orwellian propaganda. The Republic did not fall, and Hampshire soon resumed raising the flag, but Congressman Turner wants the government to coerce campus flag displays, in the interests of freedom. He was apparently inspired by the temporary take-down of the flag at Hampshire College after the election. Not long after Donald Trump’s typically uninformed tweet calling for the prosecution and de-naturalization of flag burners, Ohio Congressman Michael Turner introduced the Protect the Flag Act, which would deny essential federal funds to any college or university that bars display of the American flag. (Brandon Day/Unsplash) This article is more than 5 years old.