Monday, December 5, 2016

A Flag-Burning Ban? Unconstitutional and Anti-Conservative

Last week, Donald Trump sent out a tweet: “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

Like so many of the President-Elect’s tweets, this one was simple but clever. Trump says there must be “consequences”, but then hedges by suggesting that “perhaps” flag-burners should lose their citizenship or face imprisonment. Doing so, Trump cultivates righteous anger under the pretense of his subliminal flexibility. By saying “perhaps”, Trump induces the support of those who might support lesser consequences than prison.

Yet Republicans should not sit idle in face of this tweet. Trump is not just a man, he is the soon-to-be leader of the free world. As Charles Cooke notes, Trump’s tweet is not a peripheral concern: it has the potential to become law. And if that were to happen, it would cut at the most sacred of conservative values.

The first value under threat is individual freedom. At its most basic level, conservative ideology is concerned with allowing individuals setting their own destiny. While conservatives must be more attentive to the diversity of human freedom, freedom from intrusive government is our supreme value. But by restricting flag burning, we would restrict the most crucial of freedoms: the freedom to speak on matters of political or public concern. That freedom matters not solely for the natural right it embodies, but in its verification of America. Where others, such as Daesh (or ISIL/ISIS/the Islamic State) wave their flags in service of bloody tyranny, we wave Old Glory in service of peaceful unity. That unity is why hundreds of millions of oppressed citizens have welcomed our arrival as liberators.

Nevertheless, our unity in freedom is not simply maintained.

Sourced in the 13th century Magna Carta, the 18th century enlightenment, and the moral courage of our founders, the American experiment remains a work in progress. Rightly, it will always be so. But just as our united freedom requires defense by our military, it requires sustainment by our united discourse. Namely, our ability to disagree with one another in service of both consensus and obstruction. That ability makes America exceptional. Even in the liberal democracies of Europe, governments do not trust their citizens with truly free debate. Instead, they impose restrictions on the content of political speech. In consequence, they chill the open articulation of controversial ideas.

These restrictions lead to a very dark place. Protecting hate from the cooling influence of the public square, anti-free speech laws foster resentment in the shadows. That resentment fuels the recruitment of extremist groups that make the Alt-Right look like Bernie Sanders supporters.

Yet there’s another threat here. Because Trump’s tweet also represents a problematic appropriation of Old Glory by the executive. While Trump might bear the pretense of acting in good faith, his tweet carries the power of his looming office. While the vast majority of us find the idea of flag burning repellant (personally, I regard the act as a despicable insult to those who have risked everything for America), Trump’s beliefs now carry great power. That matters because when it comes to free speech, the Constitution, not the President, must be America’s arbiter.

The founders established the Judicial branch for a reason: to ensure that the personal interests of one President or one Congress cannot easily dissolve the legal rights of the people. Free speech is the most important of all our rights. And writing the majority opinion in the 2011 case of Snyder vs. Phelps, Supreme Court Chief Justice, John Roberts explained why the Constitution protects hurtful – and even hateful - speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Ultimately, that’s the key. Controversial, uncomfortable speech matters as much if not more than comfortable speech. Freedom is too important to be left to the whims of one leader. Its defense is incumbent upon all of us because all of us suffer in its absence. That is the lesson of history and of culture (read Orwell’s 1984…). And just as conservatives must challenge Trump, liberals must also look in the mirror. As I argued recently, when elite colleges like UVA face unions of anti-free speech students and faculty, we should all be concerned.
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