The Jeffersonian Perspective

Commentary on Today's Social and Political Issues
Based on the Writings of Thomas Jefferson

Flag Burning: Is it Protected Speech?

by Eyler Robert Coates, Sr.    

The Supreme Court has stated that flag-burning is a form of expression that is protected by the First Amendment provisions for free speech, and Congress is poised to pass a constitutional amendment making it possible to prosecute flag burners. But an argument could be made that the 1st Amendment was not intended to protect flag burning, that it is an inessential form of expression that need not be protected, and that the people, through their representatives in Congress or in the State legislatures, should feel free to make flag-burning unlawful if they wish.

Whether flag burning should be made unlawful is another question. Flag burning is a form of protest, in the same class as a boycott or the hissing of a speaker. It is not itself speech, but a symbol, just like the flag itself is a symbol. Flag burning is not a nuanced form of expression, providing different messages, but a one-message act of protest. It does not express a particular idea, other than, perhaps, the single one of resentment and contempt. The suppression of flag burning is not an attempt to suppress anyone's views on abortion or warfare or any other issue. It refers solely to the way the one-note message is delivered, not to the substance of the protest. There are many ways of showing protest and of delivering the message of contempt. If those ways are injurious to persons or property, they are not considered protected free speech. The Boston Tea Party, for example, carried a great symbolic message, but no one would suggest that that act of civil disobedience was actually protected free speech. In most cases of civil disobedience, the active party deliberately violates a bad law in order to make a point. But he also realizes that along with that violation, he almost certainly will receive the punishment proscribed by law. That is all part of making the point. The flag burner, on the other hand, claims the right to burn flags without being punished for it, just as one claims the right to speak out on any question without being punished by law. That is the difference.

Adding flag burning to that list of injurious acts only designates another level of injury that the people of this nation have determined shall not be tolerated. While rejecting it as an example of gratuitous offensiveness, however, it still does not reject the right of any person to express dissent on any subject through the normal channels of speech. Contempt is not being forbidden. The amendment does not really focus on dissent, but on the flag itself.

Nevertheless, outlawing flag burning only INCREASES its symbolic value. The results of this amendment is almost surely to be MORE flag-burning, not less. It will raise it from a silly protest mechanism to a big-time protest incident. Think of the martyrs and the potency of their message! The fact that they burned a flag and went to prison will draw some attention, but the REASON why they burned the flag will be emphasized and this will strongly drive their message home. It may be that this amendment could be considered a good thing for that reason, since it will put into the hands of otherwise unnoticed protestors a means by which they can call nation-wide, if not international, attention to their protest. So basically, it seems to be a foolish thing for those wanting to have the flag respected to promote this amendment. It is a free country, however, and the people of this country are free to support foolish legislation if they so choose.

There is good reason for believing that the Supreme Court decision treating flag burning as speech was a mistake, and it is doubtful whether the framers of the Constitution intended that the prohibition against laws abridging the freedom of speech should cover anything more than the spoken word. Jefferson did not seem to consider even writing a letter to someone an issue of free speech, but rather a "right of free correspondence," which he apparently distinguished from free speech. He wrote:

Jefferson was concerned with the right of a representative in Congress to write his constituents on any subject he pleased. Since the representative was being indicted by a federal grand jury with a threat of being prosecuted in a federal court (it never was prosecuted in fact), it would seem that it would be most appropriate to claim protection under the Constitution for the right of free speech, if, indeed, the laws under which one were being prosecuted violated that provision of the federal Constitution. It is inconceivable that if the federal laws under which the prosecution occurred were considered in violation of the 1st Amendment, that this fact would go unnoticed and unstated. Isn't that one of the purposes served by the Constitution, to protect specifically named rights? Indeed, that would be the strongest possible plea in a federal court. The intended prosecution in federal court, which was the subject of the Virginia Protest, was in direct violation of the 1st Amendment IF that amendment protected free correspondence. Hence, we must assume that the alleged violation of the law by the representative was NOT considered a violation of the 1st Amendment's protection of free speech.

The Virginia Protest was concerned with the question of determining jurisdiction. The reason why Jefferson stated specifically that "The right of free correspondence is not claimed under the Constitution of the United States, nor the laws or treaties derived from it," was because if it were so claimed, it would rightly fall within the jurisdiction of the federal court since, as he had noted elsewhere:

    "The Federal Constitution alienates from [the State courts] all cases arising, 1st, under the Constitution; 2dly, under the laws of Congress; 3dly, under treaties, etc. But this right of free correspondence, ... has not been given to us under, 1st, the Federal Constitution; 2dly, any law of Congress; or 3dly, any treaty; but... by nature. It is therefore not alienated but remains under the protection of our [State] courts." --Thomas Jefferson to James Monroe, 1797. ME 9:423

In enumerating the powers of the federal government, the Framers also specified certain rights to be protected. And those powers and rights NOT enumerated for protection were specifically stated (9th and 10th Amendment) to be retained by the people, and not to be denied or disparaged.

    "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." --Amendment IX

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." --Amendment X

If the freedom of speech clause extended beyond the spoken word, Jefferson had the perfect defense by claiming that the 1st Amendment forbade any legislation abridging freedom of correspondence. Why go any further? But he did not do this. He argued that it was protected as a natural right, and by the state courts. His purpose, thus, was to show that the supposed offense was NOT within the jurisdiction of the federal court, but was one that was retained by the states, and that it was, therefore, rightly protected by the state courts. Hence, the unavoidable supposition that he considered there was no provision of the federal Constitution that served as a protection for the alleged offense. The Framers intended that certain aspects of citizen life be specifically protected from the government's power, as in the 1st Amendment. And the whole point of Jefferson's argument is, that although free correspondence is not one of those rights specifically protected, it nevertheless is protected by other means which are given blanket recognition by the Constitution in the 9th and 10th Amendments.

There is not one shred of evidence to support the belief that the Framers thought that free correspondence was protected as free speech. Let those who claim otherwise show where anyone of that time said anything like, "Written correspondence is protected under the 1st Amendment; it is protected as a form of free speech." It would seem that if the Framers indeed did think that freedom of speech included other forms of expression, there would be at least one or two instances where this was demonstrated. In the Virginia Protest, there was an instance where it was overtly implied that they did NOT think so. If asked, they would no doubt have said that speech is speech, and correspondence is correspondence.

If writing a letter does not fall under "free speech," then it would appear that Jefferson considered "freedom of speech" in the 1st Amendment to mean speech pronounced by the vocal chords, and not just any kind of expression. And since the 1st Amendment specifies freedom of the press separately, that would seem to be an additional reinforcement of that view, since if free speech included every kind of expression, singling out a free press is redundant.

The idea that speech has acquired of having this broad umbrella of meaning, covering all kinds of expression, is something that is peculiar to the modern interpretation of the 1st Amendment. No one refers to letters as speech in any other context, such as "the postman brought me an envelope full of speech today." "What is he doing with that flag? He's speaking with it." All of that is absurd, and we suspect it would have been equally as absurd to persons 200 years ago to apply the term "speech" to any and all kinds of expression. Were it not for the Supreme Court stretching the 1st Amendment by broadening its interpretations, we would probably not even think of speech as anything other than the spoken word. A modern dictionary does not even include a definition for speech that would indicate just any form of expression. To assume that the framers took it as such is a case of implanting modern concepts on the past.

A restriction on flag burning IS a repressive measure, whether technically justified or not, just like any other restriction on offensiveness can be considered repressive. But even though it is a bad idea, it does not spell the end of liberty in the United States, nor does it put us on a slippery slope. There are no absolute freedoms; the rights of others must always be taken into consideration.

    "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others." --Thomas Jefferson to Isaac H. Tiffany, 1819.

Such limitations are always necessary, and their presence does not mean that further limitations are bound to follow. It merely means that a nation is exercising its right to place reasonable limits on liberty. If those limits are judged to be UNreasonable, then that is the case that should be made to the American people, not the plea that there should be no limits whatsoever. Free speech/free expression is not an absolute right. It is limited by other considerations which must be weighed in a sort of balance. As Jefferson put it:

    "[Since] no power over the freedom of religion, freedom of speech, or freedom of the press [was] delegated to the United States by the Constitution nor prohibited by it to the States, all lawful powers respecting the same did of right remain and were reserved to the States or the people... Thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed." --Thomas Jefferson: Draft of Kentucky Resolutions, 1798. ME 17:381

As originally intended, determining the limits on freedom of speech were reserved to the States or to the people, but were not to be the concern of Congress. Speech was not intended to be entirely free, but its limitations were to be the concern of the states. Just how far freedom of speech was to be pushed is a judgment call. There will be gray areas where it could be argued one way and the other, with reasonable points on both sides. Who is to decide? Ultimately, the people, through their representatives, must decide.

If the vast majority of the people are in favor of this amendment, those opposed are obliged to go along, hoping that the people will eventually see the error of their ways.

    "I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

But, some might say, even the majority cannot legitimately violate the rights of individuals.

    "Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression." -- Thomas Jefferson: 1st Inaugural, 1801. ME 3:318

But the majority CAN violate the rights of a minority illegitimately. After all, "...the will of the majority is in all cases to prevail ... " If they did do it illegitimately, it would be a wrongful act, of course. But there is nothing in our system of government that absolutely prevents wrongful acts, though there is much that allows such acts to be corrected. That is our salvation.

The ultimate question is, Is forbidding flag burning a violation of the natural rights of individuals? And that is a point where reasonable people might disagree: Is this a violation of free speech, or a regulation of its exercise? As Jefferson wrote,

    "All... natural rights may be abridged or regulated in [their] exercise by law." --Thomas Jefferson: Opinion on Residence Bill, 1790. ME 3:64

Since forbidding flag burning does not forbid any substantive message or idea, it would seem to be nothing more than the regulation of the exercise of free speech. No one needs to burn a flag in order to make a point, though it might attract more attention if it were done. And that, essentially, is what this is all about: not the expression of offensive ideas, but gaining attention in an offensive manner.
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Cross References

To other essays in The Jeffersonian Perspective

To Thomas Jefferson on Politics & Government

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© 1999 by Eyler Robert Coates, Sr.