Monday, January 31, 2005

Flag burning IS illegal!

Kieran Healy at Crooked Timber writes:
The survey found that one in three high schoolers think the First Amendment “goes too far”; that three quarters believe that flag-burning is illegal; and that 36% of them thought newspapers should get “government approval” before publishing stories in the newspaper.
This is as good a time as any for me to harp on one of my pet issues -- the blatant disregard for sovereign judicial law in the state of Texas. You may remember reading about Texas v. Johnson, the 1989 Supreme Court case that defined flag burning as a kind of speech, subject to first amendment protection. This decision overturned Texas Penal Code §42.09, which read thus:
§42.09. Desecration of Venerated Object (a) A person commits an offense if he intentionally or knowingly desecrates: (1) a public monument; (2) a place of worship or burial; or (3) a state or national flag. (b) For purposes of this section, 'desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action. (c) An offense under this section is a Class A misdemeanor.
The Court wrote:
The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages.
Good decision, if you believe in free expression, like I do. So what's Texas do? The very next legislative session, the Texas Legislature turned around and enacted PenC §42.11, practically on the same page as the law that was struck down:
42.11. Destruction of Flag (a) A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas. (b) In this section, "flag" means an emblem, banner, or other standard or a copy of an emblem, standard, or banner that is an official or commonly recognized depiction of the flag of the United States or of this state and is capable of being flown from a staff of any character or size. The term does not include a representation of a flag on a written or printed document, a periodical, stationery, a painting or photograph, or an article of clothing or jewelry. (c) It is an exception to the application of this section that the act that would otherwise constitute an offense is done in conformity with statutes of the United States or of this state relating to the proper disposal of damaged flags. (d) An offense under this section is a Class A misdemeanor.
This is just as unconstitutional as the old §42.09, but it's been on the books ever since -- unchallenged, as far as I can tell. I don't know if it's ever enforced, but it's mere presense obviously stifles expression. (After all, 75% of American high school students don't know that flag-burning is protected speech.) This statute represents a blatant disregard for the rule of law. Texas should be ashamed of itself. The Legislature had its will overturned, so it turned around and thumbed its nose at the Supreme Court. The Texas government is holding itself above due process and Constitutional authority. If the Supreme Court can't protect Texans' rights, who can? Every time I go to Houston, which is pretty often, I seriously consider performing a flag-burning. I'd burn the Lone Star Texas flag, in protest of the unconstitutional Texas anti-flag-burning statute. One of these days I'll do it. Odds are good I wouldn't get arrested... but getting arrested could be fun too.


  1. Burn it now, dude, before those ignorant teenagers come to power.

  2. As much as that would be awesome civil disobedience, I sort of hope you don't, because if you did get arrested, I would worry greatly that big patriotic rednecks run in for domestic abuse/ big patriotic redneck cops would rough you up. And then I'd be so personally enraged and appalled that I'd have to start this whole crusade for jailhouse reform in Texas, and write letters and get up petitions and picket things, which would involve driving down to Texas, and quite frankly I have enough on my plate right now.


    (/my mother)


  3. How about burning objects which just barely aren't American flags? For instance, you could burn an American flag that's missing one star, or missing a dozen stars. Or burn a flag that isn't a perfect rectangle. This would puzzle, rather than enrage, the authorities.

    You could also do weird things to American flags. For instance, you could freeze the flag. That may or may not be desecrating it. The authorities would again be puzzled.

    David E.G.

  4. i'm with you most of the way, although i find the law kind of funny rather than offensive. ah, those crazy texans, what will they come up with next.

    also, if you think that "getting arrested could be fun too", take it from me. i've spent quite a bit of time in the Harris County Jail at this point, and i'm pretty sure it's not fun under any definition of the word. unless one of the defintions of fun is "not fun at all, at all".


  5. While my head agrees with you and the Supreme Court, my heart aches whenever someone burns the flag. But laying aside feelings and a whole 'nother discussion about symbols and freedom of expression versus freedom of speech, it seems to me that the destructive expression you contemplate, while definitely a powerful symbolic statement, would do little to actually address the statute unless you plan on going all the way and getting arrested and having it become a test case. Further, this expression of dissent serves to inflame (sorry) (ok, not really) those opposed to flag-burning, hardening their stance.

    I'm a great believer in education over demonstration. Maybe we should be encouraging the folks over at The Bill of Rights Institute:

  6. Well, the point wouldn't necessarily be to cause legislative change, Joe, although that would be nice. The real reason I'd perform such a burning is the perfectly standard one: as an act of protest. I am offended by the state's actions, and I am protesting them using one of the recognized means.

    Elsie, I didn't mean that jail would be fun. I meant that it would be in some sense fun to go through that righteous legal battle. I don't *really* think that would be fun, either, although I think that that would be noble and good.

  7. "I am offended by the state's actions, and I am protesting them using one of the recognized means."

    I guess my view is that flag-burning as a protest is (generally) too broad: many viewers would construe the burning of the symbol of the state to mean that the burner believes the benefits of the state are outweighed by its flaws. It is a blunt expression, and therefore inarticulate. Moreover, acts of destruction, are, uh, destructive: they build nothing, they attempt no remedy. It is like the petulant child who, not liking the way a model is going, smashes it into smithereens.

    However, since you would be protesting an unconstitutional flag-burning statute, it makes a nice point: your protest would consist of the act that is prohibited, which makes much more sense.

  8. Actually, while the whole subject is very silly, I don't think there's anything particularly shameful about the Texas legislature's move. This is just the way checks and balances were intended to work. The primary issue in Texas v. Johnson was that the Texas law was so framed (and so defended by the state) that it amounted to suppressing certain sorts of flag defacements on the basis of the content or message of the act. The newer law, it seems to me, is an attempt to rework the law so that it is not the suppression of a particular sort of message in the way the original obvious was (since it appealed to ways that might 'offend' people). I doubt it would stand, since I think they missed the point, but such is the dialogue between legislature and court in our system.

  9. I don't see why they have to ammend anything. Every little town in every little state probably already has a law against starting fires in a public place. So all we need is a little police action. When they see someone light up a flag they come in and put it out and haul the idiot off to jail. He's not going to jail for burning a flag, but for acting in a risky or negligent manner. A few punchs to the ribs and the stomach on the way to the big house, and a cozy sell with bubba might further deter such behavior.