Monthly Archives: December 2016

It Offends Me, Therefore It Should Be Illegal: The Misguided Attempt to Ban Flag Desecration, Part 2

On a related note, I would like to address an argument that is quite farcical but has nonetheless come up. “How can you see flag desecration is a matter of freedom of conscience,” some people say, “When conservative Christian bakers have to make weddings cakes for gay couples [in some states, anyway.]” Well, it’s really very simple. Flag desecration is a form of political protest involving the destruction of an object that you personally own. (And if you don’t own the flag, desecrating it is covered under anti-theft/destruction of personal property laws.) A bakery refusing to make a cake for a same-sex couple involves a business denying service to some customers based on sexual orientation. If a liberal politician were to call for a ban on burning rainbow flags, the analogy would hold up from a legal standpoint (though I would consider it much more offensive than burning an American flag due to the implicit bigotry that would generally be involved). But burning a rainbow flag is legal in all fifty states, and I have yet to see a liberal politician call for outlawing it.

Additionally, from a pragmatic standpoint, consider the practical pitfalls of banning flag desecration. Many Americans, particularly those from historically marginalized and oppressed groups, feel that the United States has showed its true colors by electing Trump, proving that this is still a bigoted, cruel, oppressive, shameful nation. Banning flag desecration would be essentially making their argument for them by restricting their ability to protest. Furthermore, such a law would make the U.S. appear thin-skinned and prone to sweeping discontent under the rug. Nothing makes for bad P.R. quite like sending the message that you have large numbers of people angry enough to burn a flag and that your response is to muzzle them.

The final point is that it is important to note that Trump’s stance is not an anomaly in the Republican Party. Since 1989, conservatives/Republicans have generally voted in favor of proposed anti-flag burning legislation at a much higher rate than Democrats. In 1989, Republican Senators voted for a proposed anti-flag burning amendment 33-11, while Democrats rejected it 37-18. In 1995, the amendment received 219 “ayes” and only 12 “nays” from House Republicans, while House Democrats rejected the measure 107-93. In the Senate, a similar pattern was obvious. Republicans who participated voted “yay” 49-4, while Democrats voted “nay” 32-14. In these early roll calls, a significant number of the Republicans who voted “nay,” including Jim Kolbe, Robert Packwood, Wayne Gilchrest, Jim Jeffords, Christopher Shays, John Chafee, and Jim Leach, were moderate “Rockefeller Republicans,” while a significant number of Democratic “yay” votes came from moderate and conservative Democrats such as Robert E. Cramer, Howell Heflin, Ralph Hall, Robert Byrd, Ernest Hollings, Jimmy Hayes, and John Murtha. These votes were not anomalies. In 1997, House Republicans voted for a flag desecration amendment 210-13, while Democrats split their votes evenly. In 1999-2000, another flag desecration amendment was supported by House Republicans 210-10 and Senate Republicans 51-4 and opposed by House Democrats 113-95 and Senate Democrats 33-12. In 2001, House Republicans voted “yay” 207-11, and Democrats voted “nay” 113-90. In 2003, House Republicans voted “yay” 214-11, Democrats “nay” 113-86. Finally, in 2005-2006, Republicans voted “yay” 209-12 in the House and 52-3 in the Senate, while Democrats “nay” 117-77 in the House and 30-14 in the Senate. One of the Republican Senators to vote “nay,” Lincoln Chafee, eventually left the party, became an Independent, and endorsed Obama twice before becoming a Democrat. Esteemed figures in the GOP Establishment, such as both George Bushes, Newt Gingrich, Bob Dole, John Kasich, Lindsey Graham, and Paul Ryan have endorsed or voted for gutting the First Amendment. So too did Tea Party figures such as Trent Franks, Phil Gingrey, Jim DeMint, and Mike Pence. Even Ron Paul, who spoke out against a flag desecration amendment as a Representative, stated that individual states had the right to ban it. Conservative pundits such as Sean Hannity and Ben Shapiro claimed to hate “political correctness” while calling for anti-flag burning legislation because it offended them. The editors of National Review endorsed a ban in 2006. In a Gallup poll that same year, an admittedly large number, 60%, of Democrats endorsed a flag burning amendment. But it was still markedly lower than the 73% of Republicans who were supportive. And this understates the divide between self described liberals and conservatives; 71% of conservatives wanted the amendment, while only 47% of liberals did. So Trump’s stance puts him well within the mainstream of American conservatism. Maybe their parents just emotionally coddled them.

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It Offends Me, Therefore It Should Be Illegal: The Misguided Attempt to Ban Flag Desecration, Part 1

For those Americans who had the very mistaken impression that censorship was solely promoted by “politically correct” leftists, reality struck again last week. On November 29, Trump took to Twitter to declare that, “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” There is one bit of irony that to my knowledge nobody has remarked on here: November 29 marked the 205th birthday of abolitionist and anti-racism activist, Wendell Phillips. Phillips despised the Constitution because it restricted freedom vis a vis its support for slavery. Trump, by contrast, despises the Constitution because he thinks it grants people too much freedom. This is not the first time Trump has taken this position. In September of last year, he stated of flag burning, “Personally, I don’t think it should be legal.” But eight months before that, he had stated that he considered it free expression. I personally felt that his earlier statement in support of a flag burning ban should have been a warning that he likely had totalitarian tendencies. Unfortunately, what had happened was that after having flag burning be illegal for many years prior to the Supreme Court intervening in 1989, followed by scores of Republicans and all too many Democrats trying to re-ban it, Trump’s stance did not seem like a red flag to a lot of people.

Why should flag burning be permitted, even if we find it distasteful? Firstly, it is a form of free expression. Yes, it is not literal spoken speech. But it is an expression of protest against the government, and as such, it deserves just as much freedom from censorship as literal speech does. Do conservatives really want to live in a country where only spoken or written words are free from censorship? Under the logic that they use to argue for banning flag burning, the government would also have the authority to ban individuals from displaying the Confederate Flag on their car, drawing cartoons of President Obama, selling religious artwork, including a rattlesnake on “Don’t Tread on Me” posters, wearing crosses, or even flying the American Flag itself. Furthermore, I believe that out of all the efforts at censorship, calls to ban flag desecration are among the most dangerous. This is because these efforts involve attempting to directly censor a form of protest against the government and outright ban it from any public forum. From there, the country would be one step away from a Police State.

I certainly respect people, especially veterans and their friends and family, who feel that flag desecration is extremely disrespectful to the men and women who have fought and died for this country and that this therefore justifies banning it. However, putting aside the question of whether or not flag burning is actually an attack on soldiers and veterans as opposed to just the government, the fact that a form of expression elicits pain in many people is not just cause to ban it. Freedom of expression extends to forms of expression that are hurtful, disrespectful, and even reprehensible. And quite frankly, I find it rather hypocritical for conservatives to say that women, LGBT people, and racial minorities must “suck it up” and respect the free speech of people who engage in bigoted or hateful forms of expression, while people who are offended by flag desecration get to write their feelings into law.

While I am likely to be raked across the coals in some quarters for what I am about to say next, the visceral contempt, even hatred that gets directed at people who desecrate the flag leaves me with a bad taste in my mouth. I do not personally believe in burning the flag. I love America, I think that flag desecration is hurtful to many soldiers and veterans, as well as their friends and families, and often distracts from whatever point the person doing the desecrating was trying to raise. But I think that good people can come to different conclusions on this. And I believe it is extremely condescending for white, heterosexual, cis men such as myself to be lecturing people who have been oppressed or whose ancestors have been oppressed here about how great our country is. Those of us who love America and oppose flag desecration have to empathize with why other people may feel differently based on their personal or family experiences. Similarly, we have to respect that some allies of marginalized groups may feel that the United States’s shortcomings on civil rights justify flag desecration and that, again, this does not make them bad people. Many supporters of same-sex marriage, especially libertarians and conservatives, have called on other gay marriage advocates to be more respectful and tolerant of people who disagree and to stop demonizing them. If a gay person is asked to respect people who believe that they should have less rights because of their sexual orientation, then Americans should sure as Hell respect people who burn a piece of cloth with the government’s logo on it.


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