Originally
appeared in the October 1995 issue of The
Free Market
There are
many curious aspects to the latest flag fracas. There is the absurdity
of the proposed change in our basic constitutional framework by
treating such minor specifics as a flag law. There is the proposal
to outlaw "desecration" of the American flag. "Desecration"
means "to divest of a sacred character or office." Is
the American flag, battle emblem of the U.S. government, supposed
to be "sacred"? Are we to make a religion of statolatry?
What sort of grotesque religion is that?
And what
is "desecrate" supposed to mean? What specific acts
are to be outlawed? Burning seems to be the big problem, although
the quantity of flag-burning in the United States seems to be
somewhere close to zero. In fact, most flag-burning occurs when
patriotic groups such as the American Legion and the Veterans
of Foreign Wars solemnly burn their worn-out American flags in
the prescribed manner.
But if burning
the flag is to be banned, are we to clap numerous American Legion
or VFW people in the hoosegow? Oh, you say that intent is the
crucial point, and that you want to outlaw hippie types who burn
U.S. flags with a sneer and a curse. But how are the police supposed
to figure out intent, and make sure that the majesty of the law
falls only upon hippie sneerers, and spares reverent, saluting
Legionnaires?
But if the
supporters of the proposed flag amendment are mired in absurdity,
the arguments of the opponents are in almost as bad a shape. Civil
libertarians have long placed their greatest stress on a sharp
difference between "speech" and "action,"
and the claim that the First Amendment covers only speech and
not actions (except, of course, for the definite action of printing
and distribution of a pamphlet or book, which would come under
the free press clause of the First Amendment).
But, as the
flag amendment advocates point out, what kind of "speech"
is burning a flag? Isn't that most emphatically an action--and
one that cannot come under the free-press rubric? The fallback
position of the civil libertarians, as per the majority decisions
in the flag cases by Mr. Justice Brennan, is that flag-burning
is "symbolic" speech, and therefore, although an action,
comes under the free-speech protection.
But "symbolic
speech" is just about as inane as the "desecration"
doctrine of the flag-law advocates. The speech/action distinction
now disappears altogether, and every action can be excused and
protected on the ground that it constitutes "symbolic speech."
Suppose,
for example, that I were a black racist, and decided to get a
gun and shoot a few whites. But then I could say, that's okay
because that's only "symbolic speech," and political
symbolic speech at that, because I'm trying to make a political
argument against allegedly pro-white legislation.
Anyone who
considers such an argument far-fetched should ponder a recent
decision by a dotty leftist New York judge to the effect that
it is "unconstitutional" for the New York subway authorities
to toss beggars out of the subway stations. The jurist's argument
held that begging is "symbolic speech," an expressive
argument for more help to the poor. Fortunately, this argument
was overturned on appeal, but still "symbolic arguers"
are everywhere in New York, clogging streets, airports, and bus
terminals.
There is
no way, then, that flag laws can be declared unconstitutional
as violations of the First Amendment. The problem with flag laws
has nothing to do with free speech, and civil libertarians are
caught in their own trap because they do in fact try to separate
speech and action, a separation that is artificial and cannot
long be maintained.
As in the
case of all dilemmas caused by the free-speech doctrine, the entire
problem can be resolved by focusing, not on a high-sounding but
untenable right to freedom of speech, but on the natural and integral
right to private property and its freedom of use. As even famed
First Amendment absolutist Justice Hugo Black pointed out, no
one has the free-speech right to burst into your room and harangue
you about politics.
"The
right to freedom of speech" really means the right to hire
a hall and expound your views; the "right to freedom of press"
(where, as we have seen, speech and action clearly cannot be separated)
means the right to print a pamphlet and sell it. In short, free
speech or free press rights are a subset, albeit an important
one, of the rights of private property: the right to hire, to
own, to sell.
Keeping our
eye on property rights, the entire flag question is resolved easily
and instantly. Everyone has the right to buy (or weave) and therefore
own a piece of cloth in the shape and design of an American flag
(or in any other design) and to do with it what he will: fly it,
burn it, defile it, bury it, put it in the closet, wear it, etc.
Flag laws are unjustifiable violations of the rights of private
property. (Constitutionally, there are many clauses from which
private property rights can be derived.)
On
the other hand, no one has the right to come up and burn your
flag, or someone else's. That should be illegal, not because a
flag is being burned, but because the arsonist is burning your
property without your permission. He is violating your property
rights.
Note the
way in which the focus on property rights solves all recondite
issues. Perhaps conservatives, who proclaim themselves defenders
of property rights, will be moved to reconsider their support
of its invasion. On the other hand, perhaps liberals, scorners
of property rights, might be moved to consider that cleaving to
them may be the only way, in the long run, to insure freedom of
speech and press.