Old Glory in Flames

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The RNC and the DNC have presented us with many memorable sounds and images: Donald Trump walking to the stage confidently with a big strip of gauze around his ear;   “We love Joe” chants filling the auditorium;  Michelle Obama feeling the “hope” in the air.  And then there are the images from outside the two conventions:  The rows of police officers lined up in nervous expectation;  Protestors in Keffiyehs waving their fists in the air;  And, of course, the red and white stripes of the American flags in flames.

In an article for MSNBC, Jordan Rubin vehemently criticized Donald Trump for calling for the jailing of anyone who burns the American flag. Rubin writes, “While Democrats seek to reclaim the mantle of “freedom” from Republicans this election season, the GOP’s presidential nominee pushed for an unconstitutional punishment for those who exercise their freedom in a way he dislikes — that is, by burning the American flag. “ (https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-flag-burning-punishment-dnc-protests-rcna167749)

As a legal writer, however, Rubin should know what I learned by simply taking an hour to read up on the history of the laws regarding the desecration of the American flag.  What I learned is that the legality of the burning of the flag is highly contentious, and the act of desecrating the flag has actually been made illegal at different points in U.S. history.

The legal fight over the American flag goes all the way back to 1907 when the State of Nebraska prohibited two businessmen from selling beer with flag labels (Halter vs. Nebraska).  In 1968, Congress approved The Federal Flag Desecration Law following Vietnam protests.  This law made it illegal to cast “contempt” upon “any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling on it.”

It wasn’t until later in U.S. history that the government began to reevaluate the symbolic meaning of the flag in light of the First Amendment.  In 1984 a man by the name of Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas.  He was arrested and convicted of breaking Texas law. He was sentenced to one year in prison and a $2,000 fine.  But his conviction was overturned by the Texas Court of Appeals and the case ultimately made its way to the Supreme Court.  There, on October 1, 1989, the Supreme Court made it legal to burn the American flag.

It was a 5-4 decision, and the majority opinion, written by Justice William Brennan explained, “Johnson was convicted for engaging in expressive conduct. … Johnson’s conduct did not threaten to disturb the peace. … Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”  (https://constitutioncenter.org/blog/when-the-supreme-court-ruled-to-allow-american-flag-burning)

I think the debate over the desecration of the American Flag, or any country’s flag for that matter, ultimately lies in the understanding of the significance of a country’s flag as a symbol.  Justice Brennan mentioned that the American flag is a symbol of nationhood, but he is only partially correct.  The flag of a country is much more than just a symbol of nationhood.

In his book Dynamics of Faith, Paul Tillich defines the concept of a symbol by first comparing it to the notion of a sign.  A sign (like a street sign for example) is an object that points beyond itself.  In other words, it has a meaning above and beyond the object itself.  So, the red light in a traffic light means much more than simply a light that is red.   It tells vehicles to stop.  And as long as the convention of the time and place remains this way, this will be what the red light signifies.  But there is nothing inherent in the red light that means “stop”. So, if convention changes, like if the green light is suddenly accepted as a sign to stop, then the red light will lose its meaning.

A symbol is very different. In the words of Tillich, a symbol “partakes to that which it points”, in other words, it is intrinsic to what it symbolizes.  For example, Tillich writes,   “the flag participates in the power and dignity of the nation for which it stands”.

A flag is much more than a sign of nationhood.  It represents the nation’s struggles, its victories, its history, its values, its goals, and its dreams.  It represents the very soul of that nation. It’s why a flag is flown at half-mast when the country has faced tragedy.  It’s why we pledge allegiance to our flags.  It’s why our Olympians march proudly wielding the flags of their nations.  Flags are not red lights in traffic.  They are symbols, not signs. They “partake to that which they point”;  They are integral to the nation’s soul.  And what they say cannot be expressed in mere words.  That’s why in April a group of fraternity members from the University of North Carolina put themselves at risk to stubbornly hold up the American flag as protestors tried to replace it with a Palestinian one.

This is what Justice Brennan did not understand when he wrote his decision.  This is why in his dissent to that decision Justice William Rehnquist wrote, “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”  This is why as a response to the court’s decision to make flag burning legal in Texas, congress passed the Flag Protection Act of 1989.  In 1990, that act was declared unconstitutional.

“If there is a bedrock principle underlying 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,” said Justice William Brennan. (https://constitutioncenter.org/blog/inside-the-supreme-courts-flag-burning-decision)

But Brennan missed the point again.  Burning the flag is not something society finds “offensive” or “disagreeable”; Burning the country’s flag is equivalent to setting the country aflame.  And while the Supreme Court and the Democratic party haven’t yet grasped this, others have.  Donald Trump has.  And so have the Pro-Palestinian protestors who are publicly incinerating American flags and stomping on the ashes.

In Israel, if you are caught burning an Israeli flag, you can be sent to jail for up to three years. Israel gets it too.  The day America abandoned Old Glory was the day it abandoned its soul.