Flag 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:
Breitbart.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: