Despite a spate of court decisions against them, some people continue to insist that there is no speech interest in flag burning, and therefore flag burning should not be protected by the First Amendment. One has to wonder, then, whether something like flag waving is a speech act? If flag burning doesn’t qualify as speech, then flag waving can’t; if flag waving is protected as free speech, then flag burning should be as well.
Imagine, for example, a law that bans the waving of the Confederate flag or the Nazi flag. Would such a law be an unconstitutional infringement of free speech rights? This isn't a baseless analogy: many southern states protect Confederate flags against desecration on the exact same level as the American flag. I’m sure that a few people would think so, but most wouldn’t — most would immediately recognize such a law as unconstitutional, even though waving a flag doesn’t actually involve words or speaking. Why?
No one takes the “right to free speech” completely literally — that’s why no one thinks that speaking is protected, but printed material is not. Once we eliminate such crass literalism, though, we also have to recognize that protecting free speech can’t be limited to only the protection of words. What about drawings and paintings? What about symbols and photographs? All of these deserve the same protections as words because they communicate ideas. Waving a flag communicates a message and it’s the communication of a message, ideas, and thoughts which is what we’re ultimately protecting when we protect the right to free speech.
It’s easy to come up with similar situations where people’s “free speech” rights are protected even if they aren’t using words to communicate their messages. Students have a right to wear black armbands to school. Christians have a right to wear a cross. People have a right to fly an American flag outside their homes. People have a right to fly communist, Confederate, and Nazis flags. People have a right to draw satirical cartoons which criticize the president. All of these are forms of speech because the concept of speech is not and cannot be limited solely to oral communication or even to words and sentences.
If opponents of flag-burning are correct and the burning of a flag is not speech but instead merely “expressive conduct” which can be regulated, then so is waving the flag. In that case, it would be difficult to argue how wearing or carrying any symbol qualifies as speech. That, however, would contradict a lot of Supreme Court cases as well as people’s normal intuition about such things. How many so-called patriots have really thought about the fact that their efforts could remove their own hyped-up flag waving from the lists of speech protected by the First Amendment? (But of course, nobody would want to restrict doing positive things with the flag, only negative things, so that’s okay, right?)
People realize that waving and burning flags is a form of symbolic communication. Conservatives who would like to ban flag burning surely understand this — and since nearly everyone who supports a ban on flag burning would not support a similar ban on flag waving, we must conclude that their arguments or position are not based upon a principled belief that flag burning is not a form of speech. Instead, their position can only be based upon the belief that it is a form of speech which does not deserve protection.
If this is true, then this is what they should be arguing. They should be making a case for the idea that flag burning and flag desecration should be exceptions to the general rule that speech should be protected. There are already such arguments for obscenity, and while I don’t find those arguments compelling, their existence at least proves that such arguments are possible. Asking supporters of bans on flag burning to make similar arguments themselves should not, therefore, be asking too much.
Then again, perhaps many supporters of bans on flag burning and flag desecration recognize on some level just what such arguments would entail. In order to argue that flag burning is a form of speech which doesn’t merit protection, they might actually have to address the ideas which flag burners are trying to express — and they would have to make the argument that such ideas should be excluded from political discourse. Can you imagine someone trying to articulate why the Confederate flag should be “protected from being burned, defiled, or treated with contempt”?
Perhaps as a response to flag burning, offended people should hesitate to seek legislative bans and instead respond by waving the flag. After all, it has been said that the best response to speech you don’t like isn’t censorship but instead more speech. Or don’t they believe that people will pay as much attention to their response?
