It's Debatable: Our flag: A burning question

This week, Arnold Loewy and Donald May debate flag burning. Donald has been a candidate for Congress and writes an independent blog on lubbockonline.com and Arnold is the George Killiam Professor of Law at Texas Tech University School of Law.

Arnold: Flag represents

our right to burn it

To celebrate Flag Day, Our debate topic for today is whether the Supreme Court's decision, upholding the Constitutional right to contemptuously burn our American Flag was good news or bad news for those of us who love the flag. Though counterintuitive, I contend it was good news.

In assessing this question, one must first consider why we value the flag as much as we do. The answer is unlike the flag of many other lands, our flag stands for freedom. If one can be punished for burning the flag because of his disagreement with American policies, the symbol itself becomes tarnished.

One can be sure a German citizen during the holocaust would have been punished for desecrating anything symbolic of Nazism. Similarly, Chinese citizens were severely punished for displaying a symbol of liberty in Tiananmen Square. Punishing opposition is a sign the people if left to their own devices will not support the government. Frankly, I think the United States and the flag that represents it are better than that.

If one doubts the value of the flag-burning decision, consider the behavior of our citizens. Shortly after the first flag-burning decision, Congress passed the Flag Protection Act designed to overturn the Supreme Court's decision and allow for punishment of flag burners. Immediately thereafter, the Nation witnessed a spate of flag burnings previously unprecedented in the United States.

A year or so later, the Court invalidated the Flag Protection Act thereby again constitutionally protecting the right to burn the flag.

Following that decision, a funny thing happened. All the flag burning stopped. Why? I have a couple of theories. The first is some of the flag burners may have realized this country isn't so dictatorial if it allows its citizens to burn the flag. Therefore there is no need to burn it.

A second reason might be the point of burning the flag was no longer there. The disrespectful flag burner wants to get in the face of American citizens, burn our precious flag and figuratively say: "What are you going to do about it"?! When our answer is "nothing," burning the flag loses its value to the protester.

Finally, for those who think flag burning statutes are designed to protect the physical flag itself and not to squelch anti-American ideology, ask yourself if a cloth factory burned down and a bunch of bed sheets, suits, and flags were lost in the blaze would we really be more concerned about the loss of flags than the loss of the remainder of the inventory? If not, then our reason for punishing the flag burner is not the harm to the flag, but the hatefulness of his ideology.

If there is any doubt on that score, it is worth remembering according to federal law, a flag no longer fit for use should be destroyed "preferably by burning." So, apparently before the Supreme Court decisions, burning a flag was fine so long as it was done respectfully.

Donald: Flag is a monument, not just a piece of cloth

Professor Loewy and I are in agreement it is the disrespectful burning of the flag of the United States of America that is of concern to us. We both support the ceremonial and respectful cremation of our flags as a proper means of retiring flags that are so damaged they are no longer fit for display.

The question we are addressing concerns the burning of our flag in anger and not in respect. Is the burning of an unfurled displayed flag of the United States of America an act of public speech that is protected by the First Amendment or is it a public act of desecration and destruction that intentionally portrays disrespect and loathing for both our flag and the "Republic for which it stands?"

It is not the criticism of our flag or our republic that disturbs me. Persons have the ability to freely and peacefully protest our nation, our liberty, the Judeo-Christian foundations of our republic, apple pie, motherhood and our flag.

Those who protest do not have the right to display their anger by looting and burning our cities. They do not have the right to attack our police and military, to fly airplanes into our buildings, or to set off bombs in our midst. They are not justified to take a sledgehammer to the Washington Monument, to remove the Christian crosses and Stars of David from our national cemeteries, or to burn our flag as a means of protesting something about the United States of America they do not like.

Those citizens and aliens who disrespect our flag do not have the historic sense of reverence and pride for the military men and women who have served under our flag and have carried our flag into battle. Many of those who have shown disrespect to our flag are new to our nation and have immigrated here with no intentions to assimilate into our American Culture, to embrace the liberty our flag represents, or to understand our unique history and heritage. They embrace the flags and the cultures of other nations and live among us to benefit from our enormous generosity. Some also have the intention of harming us and even destroying our liberty and our republic along with our flag.

I do not believe people who burn our flag as a means of angry protest should be imprisoned. We do not need persons filled with hatred toward our nation and our liberty spreading their philosophies of hatred to other prisoners. They need to be deported to their home countries or to other countries such as Cuba, North Korea, or Iran where the cultural environment and heritage will be more to their liking.

Arnold: Flag burners often are American citizens

I find it hard to believe Dr. May is serious about deporting American citizens who burn the flag. Historically there have been countries where political dissidents have been deported, but that practice has never cursed American soil. If our flag truly stands for freedom, its burning cannot justify the deportation of American citizens. Perhaps Dr. May believes most flag burning is done by aliens living in the United States, but at least based on the cases before the courts, that does not seem to be the case.

For example, in the first flag burning case, Street v. New York, Sidney Street, a young African-American man, upon hearing of the shooting of James Meredith (first black to enroll at Ole Miss), burned his flag which he theretofore had proudly displayed on patriotic holidays, and said: "If they can let that happen to Meredith, we don't need no damn flag." If Dr. May would deport Sidney Street, let's just say I strongly disagree.

Dr. May asks "Is the burning (a) flag act an act of public speech that is protected by the First Amendment or is it a public act of desecration and destruction that intentionally portrays disrespect and loathing for both our flag and the 'Republic for which it stands'?" The answer is both.

Dr. May appears to concede the propriety of criticizing (and impliedly disrespect and loathing) of all of our traditions (presumably without fear of deportation). But if that is what the flag burner is doing, why isn't that constitutionally protected speech? The short, but I believe complete, answer is it is protected. It is worth noting conservative Justices Scalia and Kennedy agreed.

It is also worth noting our Constitution permits Klansmen to burn a cross, Nazis to march in a predominantly Jewish community and presumably destroy sacred Jewish symbols. How ironic it would be if the same Constitution that protected the right of Nazis and Klansmen would turn its back on the disillusioned protester who is protesting his hatred and contempt for America by burning the flag.

Dr. May tells us protestors have no right to loot and burn our cities, attack our police, fly airplanes into our buildings, destroy our monuments or burn our flag as a protest. I would ask the reader to play the old game of which one does not belong with the others. The answer is obvious. The protestor does not own the cities, buildings or monuments. But if the protestor is burning his OWN flag, he is not only exercising his right to free speech, but his right to use or destroy his own private property as he sees fit (a right which I understand from prior debates, Dr. May supremely values).

This should not be confused with the right to burn somebody else's flag, such as one belonging to the government. One has no right to destroy government property. One may not deface the Washington Monument, but he may deface or destroy his own replica of the Washington Monument which he purchased at the gift shop. The same holds for flags. He may destroy his own flag, but he may not destroy one owned by somebody else.

Ironically, Gregory Johnson (Texas v. Johnson) did destroy a flag owned by the government and had he been so charged, he could have been convicted. Unfortunately he was charged under a statute which forbade desecrating a flag regardless of ownership. Thus, it was the government that turned Gregory Johnson into a First Amendment hero. If he was prosecuted for vandalism or theft, as he should have been, the First Amendment would not have protected him.

But the free speech principle for which his case stands is a wonderful tribute to our flag on its birthday.

Donald: Our flag is

synonymous with our nation

Does our Constitution protect those who hold our flag and our "Republic for which it stands" in contempt?

I am of the opinion the public burning of our unfurled flag in protest is not protected free speech but is an actual attack on our nation. I believe this burning of our flag is a part of the physical and cultural attacks on the United States of America and the Liberty our government was established to protect.

Our flag is synonymous with our nation, our Constitution that defines our republic's federal government and the foundational principles of our nation contained in the first two paragraphs of our Declaration of Independence.

It was The Star Spangled Banner flying over Fort McHenry that inspired Francis Scott Key to write the national anthem. It was this flag he saw still flying "by the dawn's early light" that assured him Fort McHenry and our nation still survived.

Our flag represents our Republic and has been carried into our battles since our nation's founding. More than 1.2 million of our military men and women have died to preserve our flag and our nation. Men have been willing to sacrifice their lives before allowing our flag to touch the ground.

Our flag flies from government buildings, from businesses and from homes. It flies over our military bases, our embassies and our outposts around the world. Our flag stands for the concept of liberty on which our Founding Fathers based our Declaration of Independence, fought our Revolutionary War, wrote our Constitution and our Bill of Rights, and waged wars to ensure our foreign enemies could never defeat our nation and our liberty.

For too long we have allowed those who do not share our common values to enter our borders and to even become citizens of our sovereign nation. They and many who were born as U.S. citizens have burned our flag, attacked our Judeo-Christian foundational values, claimed we are not a Christian nation, and attacked our military and our police.

Our Supreme Court ruled 5-4 in Texas v. Johnson (1988) burning our flag is an act of free speech, is political in nature, and is protected by the First Amendment. I do not agree with the Court's decision, but I do agree with the dissenting opinion of Chief Justice Rehnquist: "The American flag... throughout more than 200 years of our history, has come to be the visible symbol embodying our nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy... Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."

Our Supreme Court overturned the existing better judgment of the people and the states.

I remain of the opinion publicly burning our flag in protest is an assault on our republic and has nothing to do with speech making. Burning or otherwise desecrating our flag in protest breaks the allegiance to our nation and any bond of citizenship that might have previously existed. Our Founding Fathers intended our flag to be deserving of the respect required by our nation. Most Americans still believe this.

Long may Old Glory wave "O'er the land of the free and the home of the brave!"