Flag-burning is free speech. Get over it

Donald Trump promised to ‘restore free speech’ in his Madison Square Garden rally in New York City on Sunday. The trouble is, the Republican presidential nominee also pledged to restrict people’s free-speech rights in the very same address.

‘I would like to put forward a bill…’, he told the crowd. ‘If you burn the American flag, one year in jail!’ So, within moments of presenting himself as a defender of free speech, Trump promptly announced his intention to lock people up for expressing themselves.

Because that is what flag-burning is – a form of political speech. It is a symbolic rejection of what any given flag represents, whether that’s a government, a state or a regime.

In recent years, we’ve seen Hongkongers burn the Chinese flag in protest against the Chinese Communist Party’s assault on their rights. We’ve seen Ukrainians burn the Russian flag in defiance of their invading neighbours. We’ve also seen protesters across Europe burn the EU flag to show their opposition to Brussels’ rule. Clearly, such acts of protest are legitimate in a free society.

Burning the American flag is no different. It is a symbolic rejection of the US government, its leaders or its policies. While, in a free and democratic nation like America, flag-burning is often more attention-seeking than radical, it is still a form of political speech – precisely the kind of thing free and democratic nations should protect.

This isn’t the first time Trump has floated the idea of banning flag-burning. He first did so back in 2016, in response to people burning the flag while protesting against his presidency. He mooted a ban again for the same reason in 2019. This is as much about punishing his critics as anything else.

In many ways, the debate over criminalising flag-desecration is moot. Even if Trump is re-elected as president, he’s unlikely to be able to stop anyone from burning flags, thanks to the First Amendment. In 1989, the Supreme Court ruled in Texas vs Johnson that burning the American flag is a constitutionally protected form of free speech. As Justice William Brennan put it in the majority ruling: ‘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.’

Still, the talk in Trump circles of potentially banning flag-burning does speak to the hypocrisy of too many on the supposedly freedom-loving right. All too often, they demand free speech for me, but not for thee. They rightly criticise the shrill cancel-culture antics of so many on the ‘progressive’ left. Yet they seem a little too keen to indulge in a spot of cancelling and censorship themselves.

The late Supreme Court justice, Antonin Scalia, whom Trump has often praised, was personally offended by flag-burning. Yet, in Texas vs Johnson, he sided with the majority in favour of free expression. ‘If I were king, I would not allow people to go around burning the American flag’, he said. ‘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… That was the main kind of speech that tyrants would seek to suppress.’

These are words Trump would do well to heed, lest he become the very kind of tyrannical snowflake he so often rails against.

Tim Black is a spiked columnist.