Flags and free speech

Flags are meant to serve as powerful symbols, which explains why they are a chronic flashpoint when it comes to free speech in America. The American flag represents the ideals of this nation, including liberty and justice for all. Or consider the Confederate flag. Secessionists carried it into battle in the cause of maintaining slavery, the horrific practice that to this day remains a stain on our nation's honor. Some argue the Confederate flag represents "heritage, not hate," but we've never bought into that claim. The Confederate flag, as then-Lorain County Commissioner Matt Lundy said 10 years ago, "promotes division and hatred." That's why he tried in 2015 to have sales of the Confederate flag banned at the Lorain County Fair. Abhorrent as we find the Confederate flag and what it stands for, the Fair Board was right to refuse to ban its sale, as Lundy and others pushed for over the next few years. Although we initially sided with Lundy, we soon reversed ourselves, recognizing that the Fair Board was correct that the sale of the Confederate flag was a matter of free speech. We could not abandon our commitment to free speech because we find the Confederate flag offensive. (We did, however, urge vendors voluntarily to refrain from selling it.) Thankfully, it's been a few years since the Confederate flag generated controversy at the fair, in large part because the vendor who sold it stopped coming. We didn't see the Confederate flag for sale when we attended the fair last week. Nevertheless, the fight over the Confederate flag sprang to mind Monday when President Donald Trump signed an executive order aimed at punishing those who burn the American flag. "The American Flag," Trump's order said, "is a special symbol in our national life that should unite and represent all Americans of every background and walk of life." Whatever one might think of Trump's presidency, he is correct that the American flag should represent all Americans. Whether he truly believes that himself, given his efforts to portray those who disagree with him as un-American, is an entirely different story. The order continued: "Desecrating it is uniquely offensive and provocative." Again, Trump is correct, but provocation is the main reason to burn the flag. To be clear, we aren't fans of burning the American flag, in part because the flag represents the promise of what America aspires to be. We also don't believe flag burning is an effective form of protest because the act is so shocking that it risks offending even those who agree with whatever statement a flag burner is trying to make. Nevertheless, we believe that flag burning is a protected form of free speech, as the U.S. Supreme Court ruled in the case of Johnson v. Texas. That 1989 decision centered on Gregory Lee Johnson, who burned an American flag outside the Republican National Convention in 1984. Johnson was charged under a Texas law that outlawed the desecration of venerated objects. In a 5-4 decision, with no less a conservative than Justice Antonin Scalia joining the majority, the court concluded that flag burning was a form of symbolic speech that the First Amendment protected. In his executive order, Trump acknowledged the high court's ruling but also ordered that if prosecutors could find a way to charge someone with burning the flag under existing laws, such as open-burning or disorderly-conduct violations, they should do so. Yes, there are some limits to free speech, but they should be just that: limited. The classic example is falsely yelling "fire" in a crowded theater. Likewise, setting fire to a flag in a crowded theater would likely be a crime, but setting one on fire during a street protest shouldn't be unless it presents a danger to people or property. Trump also ordered his administration to target for removal immigrants who burn an American flag. Further, he said Attorney General Pam Bondi "shall vigorously prosecute those who violate our laws in ways that involve desecrating the American flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area." In other words, Trump wants the case back before the Supreme Court, likely with the hope that the justices will reverse the prior decision and allow flag burning to be outlawed again. (Flag burning was illegal in 48 states when the Supreme Court struck down the Texas ban.) Although we dislike flag burning, overturning Johnson v. Texas would be a mistake. As we've argued before, restricting free speech is a dangerous path to start down. You might agree with the speech being banned today, but what about the speech someone wants to ban tomorrow or the day after that? Sooner or later, someone will try to restrict speech you do support. It's easy to argue in favor of free speech when you're defending the rights of someone you agree with. The real test of one's commitment to free speech comes when the rights of someone you disagree with are in jeopardy.