Burning the American flag can and should be made illegal. Here’s how:


flag-burning-nyc-2015-credit-jon-campbell-05Flag burning could easily be determined to be “Fighting Words” under the 1942 SCOTUS doctrine, and thus represent a form of “speech” that is a danger to the community.

In the USA there is actually no right to speak fighting words, which are “those words without social value, directed to a specific individual, that would provoke a reasonable member of the group about whom the words are spoken”.

With regards to flag burning targeted to a “Specific Individual”, that term could include any Veteran or Veteran’s family member that is a victim of a “flag assault” who happens to be in the vicinity of the offence.

Though the Supreme Court has effectively limited the “Fighting Words” exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction, flag burning could be included within the definition of “Fighting Words” by statute or executive order, in order for it to qualify as a form of “Fighting Words” under the current interpretation of the SCOTUS 1942 doctrine.

This may be stretching the legal definition of “Fighting Words” slightly. But no more of a stretch than saying that flag burning is itself some sort of “free speech” to begin with.

After all, is Cross Burning “free speech”?

Before anyone starts thinking that this is a completely partisan policy position, keep the following news nugget from breitbart.com in mind:

cycn_i4vqaemin_-1Breitbart.com: Flashback: Sen. Hillary Clinton Co-Sponsored Bill to Punish Flag Burners

President-elect Donald Trump isn’t the first person to propose punishment for burning the American flag. Consider the Flag Protection Act of 2005, co-sponsored by then-Sen. Hillary Clinton (D.-N.Y.).

“Any person who shall intentionally threaten or intimidate any person or group of persons by burning, or causing to be burned, a flag of the United States shall be fined not more than $100,000, imprisoned for not more than 1 year, or both,” read the bill, which Clinton co-sponsored the day it was filed by Sen. Robert Bennett (R.-Utah), along with Sen. Barbara Boxer (D.-Calif.), Sen. Thomas Carper (D.-Del.) and Sen. Mark Pryor (D.-Ark.).

The above proposed bill attempted to equate flag-burning with cross-burning, which the Supreme Court has ruled can be prosecuted. The flag burning itself is the “violence” that the law was intended to stop. I don’t think that this idea ever had much of a chance of surviving a SCOTUS challenge.

Without a constitutional anti flag burning amendment, including flag burning within the “Fighting Words” SCOTUS doctrine has a far greater chance of surviving a SCOTUS challenge than the failed Hillary Clinton co-sponsored Senate bill.

The fun part of Trump’s tweet is the usual media pavlovian barking and salivating over Trump’s “authoritarian attack on free speech” with many apparently not realizing that Clinton had actually tried to pass a law, while Trump merely tweeted his opinion.

Tool of the day award goes to: David Frum! (who also should know better)

Best flag burn caption:



One comment

  1. This is a copy of some of my Disqus discussions regarding the subject over at HotGas (or The Spartan Report) as well as a discussion on Breitbart News Network:

    The “fighting words” doctrine is already a precedent since 1942, And LEOs using “fighting words” assault charges still acknowledges the “speech” aspect of flag burning.

    The renouncement of citizenship by flag burning would be a voluntary act. Codified in the executive order with specific requirements.

    When I was a youngster flag burners would be socially shamed and shunned. It wasn’t so “dangerous” then, why should it be all that different now?

    The Chaplinsky v. New Hampshire decision has never been overruled and it has been challenged as recently as 2012.

    My point with the “Fighting Words” doctrine is that the public burning of a flag during an otherwise peaceful protest, is indeed harmful and only ever intended to incite an immediate breach of the peace.

    By that standard, “flag burning” is a form of assault that is harmful to society (especially to those who are veterans, relatives of veterans, or those who feel great emotional attachment to fallen veterans) and by it’s very nature is a form of disorderly conduct, breach-of-the-peace or harassment. Specifically, categorizing flag burning as a form of assault against those the perpetrator is ostensibly protesting against.

    It’s by no means an overly “broad Interpretation” of the “fighting words” doctrine in that it would be specifically targeted to flag burning in a protest setting where it could be reasonably expected that a veteran, relatives of veterans, or someone who feels great emotional attachment to fallen veterans would be present and directly affected by the flag assault.

    Thus the resultant assault charges against the perpetrator would likely pass muster when challenged in court.
    One of the reasons that American patriotism is on the wane is that there are few social mores reinforcing it as preferred behavior. This would be one small step to shoring up our societal obligation to encourage Americanism as a people.


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