Flag Burning: Is it Legal?By
Michael Rubinstein, Esq.
President-elect Donald J. Trump ignited a firestorm with another one of his “tweets” on November 29th. Mr. Trump was upset with news that a college student had burned the American flag during a protest on a college campus. In response, he tweeted:
News outlets and political pundits immediately criticized the President-elect for ignoring the First Amendment. Punditry aside, Mr. Trump’s tweet sheds light on an important Constitutional Law issue: flag burning as a form of expression. Is it legal in the United States, and can the federal government ever penalize an American with loss of citizenship?
The First Amendment
Ratified in 1791, the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.
The First Amendment contains several clauses that list fundamental rights every citizen enjoys. The First Amendment is the beginning of the first ten amendments to the U.S. Constitution that are known as the Bill of Rights. Courts must treat any government law that infringes on the Bill of Rights with what is known as “strict scrutiny.” It is rare for laws that infringe upon fundamental constitutional rights to survive a court’s application of strict scrutiny.
The First Amendment is one of the most frequently litigated constitutional rights in our courts. Freedom of religion cases, such as putting up a menorah on public property; a proposed law in San Francisco a few years ago to ban bris milah; and an unsuccessful recent lawsuit here in Los Angeles seeking to ban the ritual of kapparos all involved the First Amendment. While the First Amendment itself does not mention the words “freedom of expression,” the Supreme Court of the United States has developed case law that guarantees freedom of expression under the First Amendment.
Texas v. Johnson – 1989
Texas v. Johnson was a First Amendment case decided by the Supreme Court in 1989. During the 1984 Republican National Convention in Dallas, Gregory Johnson burned the American flag during a demonstration criticizing President Reagan’s policies. Johnson was arrested and charged under a Texas state law that forbade destroying a “venerated object.” He appealed his conviction, arguing that the Texas law violated his First Amendment right to freely express his opinion that the country’s actions under President Reagan were wrong.
Is Flag Burning an “Expression”
The Court noted that the First Amendment literally forbids the abridgment only of “speech.” But the Court has long recognized that its protection does not end at the spoken or written word, but also applies to expression or expressive conduct. To that end, conduct may be sufficiently imbued with elements of communication to fall within the scope of the First Amendment if 1) there is an intent to convey a particularized message, and 2) a likelihood that the message would be understood by those who view it.
A common example of this, the Court noted, was when college students wore black armbands to protest the Vietnam War. The Court also noted that there are times when the government can pass laws that forbid speech – but as mentioned, these laws must pass strict scrutiny. An example was when, during World War II, newspapers were restricted from publishing the departure schedules of naval ships sailing for Europe. The successful war effort could have been undermined if the press could freely disseminate this sensitive information.
Applied to the Johnson case, the Court ruled that flag burning is expressive conduct. The 5-4 opinion contains a frequently quoted rule that says: “if there is a bedrock principle under the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Court ruled that Johnson’s act of burning the flag intended to convey his disagreement with American foreign policy, and those who viewed this activity understood this message. While the Court noted that many people are offended when they see the burning flag, “the way to preserve the flag’s special role is not to punish those who feel differently about these matters – it is to persuade them that they are wrong.”
It is interesting to note that in 2006, legislation was proposed to enact a federal law banning flag burning. Senator Hillary Clinton was a co-sponsor of this legislation, which never passed. During a symposium at Brooklyn Law School in 2014, Supreme Court Justice Scalia, who died earlier this year, humorously remarked, “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king!”
Can the Government Revoke Citizenship?
As the above discussion shows, flag burning is a constitutionally protected form of expression. But as to the second part of Donald Trump’s tweet – can the government penalize a citizen with loss of citizenship? It turns out the Supreme Court has ruled on this issue, too.
Afroyim v. Rusk
Beys Afroyim was a Jewish immigrant born in Poland in 1893. He immigrated to the United States in 1912, and became a citizen in 1926. Mr. Afroyim moved to Israel in 1950, and voted in the 1951 Israeli elections. When his application to renew his American passport was denied in 1960, under a law that forbade citizens from voting in foreign elections, he sued the United States government for violating his constitutional rights by revoking his American citizenship.
The Supreme Court ruled for Mr. Afroyim. The Court noted that the people of this country are sovereign, and the government cannot sever its relationship to the people by revoking their citizenship. The Court analyzed the history of the 14th Amendment (enacted after the Civil War), and noted that Congress made clear that the only way a citizen could lose citizenship was by voluntary renunciation by the citizen himself. Congress has the power to confer citizenship, but not the power to take it away. Since the Afroyim case was decided in 1967, the law protects all American citizens from any attempts to strip them of their citizenship.
President-elect Trump’s tweet expressing his negative opinion of flag burning leaves no room for interpretation. Millions of Americans agree with him. But as the Court noted in Texas v. Johnson, the flag’s sanctity cannot be forced upon those who wish to express a differing opinion. The government may not compel conduct that would evince respect for the flag, and the government may never strip an American of his or her citizenship. We are all free to express our diverse opinions in this great country. The Constitution protects and encourages us to do so.
Sources on the First Amendment; Texas v. Johnson 491 U.S. 397; Afroyim v. Rusk 387 U.S. 253; Wall Street Journal; USCourts.gov.
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