I Believe in Freedom of Speech...Unless You Disagree With Me

The author I mentioned in my last post replied to me! I'm so honored. Here's what he said:

My last post showing a quote from a 2010 protest in Morgan Hill, California received some criticism because of the age of the post and the fact the school system eventually allowed shirts with flags.

When I first retorted to the author, I did laugh away the fact that the Cinco de Mayo event he described was six years old. I also mentioned that the Morgan Hill Unified School District had distanced themselves from the Live Oak Hill High School administrators by stating publicly that the school system does not disallow the wearing of patriotic clothing. Of course, he missed the larger point.

The title of his new post is "Freedom of Speech-Apply it Both Ways." He starts it this way:

Freedom of speech must be applied to both liberals and conservatives fairly. So says The Old White Guy.

I couldn't agree with him more. Freedom of Speech is a right granted to American citizens under the First Amendment of the U.S. Constitution. It's a rather simple statement that has had a remarkable effect on our society. Here's the language of the text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; [emphasis mine] or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
— https://www.law.cornell.edu/constitution/first_amendment

Such a simple set of ten words, yet so powerful that it has sparked discussion, dissent, and heated arguments for the past 224 years.

But all you have to do is look at the headlines to see that the same things are going on everyday. I quote an article from the Washington Times. ‘A new “challenge” in support of a wanted Georgia college student and New Black Panther Party member encourages individuals to desecrate the U.S. flag.’ (Which by the way is unfortunately legal under the Constitution) [emphasis mine]
Pictured: A proud American exercising her freedom of speech.

Pictured: A proud American exercising her freedom of speech.

Wait what? OK, kudos for sourcing, but gimme a second. How does one say, in the same breath, that freedom of speech is an inalienable right while also claiming that "unfortunately" it is legal under the U.S. Constitution to desecrate the flag?

As Palestinian-American writer Yousef Munayyer says, "Freedom of speech does not mean freedom from its consequences." Freedom of speech, put simply, allows Americans to say whatever they want—with a few exceptions—without fearing punishment from the state. Over the course of its 224 years of existence, this right has been clarified again and again at the highest levels of our government, in order to ensure that every single person in the United States feels free to criticize the government (and others) without facing fines or prosecution.

But you can't say whatever you want and expect that people aren't going to criticize you for it. As I write this, I understand that there are a great many Americans that disagree with me, fundamentally, on many issues. Some of these Americans may use their own platforms to criticize me. That is their right. I don't get to claim a violation of my freedom of speech because someone on the Internet thinks that my blog posts are ridiculous. Private companies and private persons are not bound by the First Amendment; the states and the federal government are. Freedom of speech is guaranteed. Freedom from consequences never is.

That having been said, let's move on to the issue of flag desecration. This is an interesting subject that sparks a great deal of debate, especially during times of civil strife in this country's past and present.

The right to desecrate the flag of the United States has been protected by the Supreme Court on multiple occasions. While the U.S. House of Representatives has attempted multiple times to pass a constitutional amendment that gives Congress the power to prohibit the desecration of Old Glory, it keeps failing. The last time an attempt was made on this right was in 2006, and the amendment failed in the U.S. Senate by one vote.

Laws prohibiting the desecration of the U.S. flag date back to 1968, when Congress passed legislation to prohibit Vietnam War protesters from burning the flag during their demonstrations. A number of different states, including Texas, followed suit, penning statues against flag desecration into their penal codes. (Sorry for picking on Texas so much but, seriously, get your act together, guys!) In 1984, Gregory Lee Johnson was charged with the desecration of the U.S. flag, which was defined in the Texas Penal Code as a venerated object. He was sentenced to one year in prison and a $2,000 fine. Thus began the landmark Supreme Court case Texas v. Johnson, another case of the author failing to do his reading.

The Supreme Court held that Johnson's conviction was inconsistent with the First Amendment of the United States. Why? Because...

Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.
— https://www.law.cornell.edu/supremecourt/text/491/397

But that's insufficient. As in Dariano v. Morgan Hill Unified School District, an individual's freedom of expression can be limited if, say, that individual's expression amounts to "fighting words"—legally, words or actions expressed for the purpose of inciting violence from their target. There's a test that the Supreme Court uses to determine whether a law or regulation set forth by the state has violated someone's First Amendment rights. If it passes the test, then it does not violate the First Amendment. This test was put into place during another landmark case, United States v. O'Brien, and it goes like so:

  1. The regulation must be within the constitutional power of the government to enact.
  2. The regulation must further an important or substantial government interest (e.g., keeping the peace).
  3. That interest must be unrelated to the suppression of speech.
  4. The regulation must prohibit no more speech than is essential to further that interest.

In Texas v. Johnson, the Supreme Court determined that...

Texas has not asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O’Brien, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression [emphasis mine]. Johnson’s expression of dissatisfaction with the Federal Government’s policies also does not fall within the class of “fighting words” likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court’s holding does not forbid a State to prevent “imminent lawless action” and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas’ interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O’Brien test.
— https://www.law.cornell.edu/supremecourt/text/491/397

I think the following words by Chief Justice Earl Warren are just perfect.

The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone.
— https://www.law.cornell.edu/supremecourt/text/491/397

And it shouldn't. Because that wouldn't be in the spirit of the First Amendment. Let's remember that the First Amendment was designed for the purpose of protecting people from the state, specifically when said people wish to criticize the state. That's speech. That's freedom. It's a right that people fought and died for, as the author is fond of reminding us. The author appears to believe that an exception should be created for the rule because he finds flag stomping personally offensive.

That's not how rights work.

The sad thing about this is that liberals are lauding the protesters who frequently stomp on the flag at Trump rallies. Yet at the same time, criticize Trump supporters for voicing their outrage. People have died bravely, so idiots like these can stick their fingers in the air and slander our flag and our country.

There's a number of people going from Trump rally to Trump rally with a giant American flag and stomping on it in protest. It's called the "Fuck Your Flag Tour," directed by a group that calls itself "FukYoFlag," which formed in 2015. They hold that stepping on the U.S. flag is a way of protesting the killings of Black men by police officers throughout the country. They don't only protest at Trump rallies because they believe that Democratic presidential candidate Hillary Clinton stands for the same imperial system that the FukYoFlag group decries.

But are they lauded by liberals, as the author claims? Casey Abbott Payne, who runs the #BlackLivesMatter Milwaukee Facebook group, stated, point blank, that:

The flag stomping is, in my opinion, misdirected energy. It is from a group of people who are, justifiably, angry and don’t feel as though they have any other way to be heard. I believe that their act of stomping on the flag only displays the power of our flag. Whether they know it or not, they are also making a display of how awesome our country is, even though we have a dark past (all countries have a dark past).
— http://www.foxnews.com/politics/2016/04/05/flag-stomping-protesters-fueling-tensions-at-trump-other-events.html

And I think she's right. Most liberals have a deeply held respect for Old Glory. I would never stomp on a flag. I would never wear it either because (a) it's disrespectful to the flag and (b) it's tacky. But as I said yesterday, strawmen are easier to argue against than facts. In general, liberals do not support FukYoFlag and their tactics, but we can empathize with them. Maybe empathy is what's missing here.

Another question comes to mind. Are the members of FukYoFlag bad actors? Take a look at the following video, and decide for yourself:

The representative for the group says that, until there is freedom and respect for all people, regardless of the color of their skin, the symbol that is the U.S. flag is "bullshit." It's not a crazy message. If one takes the time to listen to what they're saying instead of reacting to what they're doing, one might see that these are reasonable individuals, hugely frustrated with a system that has been harming them for a very, very long time. If their actions are offensive to you, that's the point. They're trying to get attention. And it's working.

So maybe they're not such idiots after all.