Sit down, shut up, you can protest the flag however you want.
ICYMI: Last weekend, NFL players protested during the national anthem by kneeling or not coming onto the field — the same methods used by Colin Kaepernick last year when he began to protest the oppression of people of color and police brutality. Kaepernick continued protesting throughout the football season — and was then not signed for the 2017–2018 season, likely because of his political outspokenness.
The protests sparked an Internet-wide controversy over respect for the American flag and the national anthem and whether you can protest these symbols of our country. Plot twist: you can protest these things because we have this thing called the First Amendment. So you know what we are going to talk about? How protesting the flag and the national anthem is constitutional. How symbolic speech is constitutional. Are you ready for a quick lesson in the First Amendment? Let’s go.
People like to argue that the First Amendment protects “speech” and the “press” but it does not protect “expression.” Sadly for those people, the Supreme Court disagrees. Instead, symbolic expression is held with the same regard as verbal expression or speech. For the record, symbolic expression includes protesting during the national anthem and burning the American flag — we’re going to go all in for this one.
Despite decades of effort, Congress nor the Courts have been able to rule or legislate flag desecration as unconstitutional. Symbolic expression is considered a penumbra guarantee, or rights derived from other rights in the Bill of Rights. The protection of symbolic speech, particularly when it comes to the anthem or the flag, stems from precedent Supreme Court cases, the First Amendment, and the Framers’ position on speech.
Before we dive into some case law, let’s get something straight: the American flag was not used as a patriotic symbol until after the Civil War. Prior to the 1860s, the American flag was almost exclusively utilized by the military to identify American ships and property. The flag became a patriotic symbol as a way to unify the North and the South as one (and we’ve seen how that has worked considering people still like to brandish the flag of the Confederacy).
And back to the legal stuff.
Congress did not attempt to legislate the American flag until the late twentieth century, but the states did. By 1932, every state had passed some variation of a flag desecration statute which outlawed things like placing any sort of marking on the flag, using the flag in any form of advertising, or publicly damaging the flag by word or act. However, the Supreme Court began dealing with the issue of commercial use of the American flag beginning in 1907 when the Court heard Halter v. Nebraska. Halter was convicted of selling beer and whiskey bottles which had the American flag on the label and fought the case up through the courts — and the Supreme Court felt as though use of the flag on commercial items would degrade or cheapen it as a national symbol.
In Stromberg v. California, the Supreme Court looked at a California flag desecration statute and determined that it violated the First and Fourteenth Amendments. Specifically, the Court cited that the California statute could suppress peaceful opposition to the government — key word being peaceful, as the Court said this protection did not extend to expressions that incited violence, crime, or unlawful overthrow of the government.
In 1942, President Franklin D. Roosevelt approved a Joint Resolution from Congress that enacted the Flag Code, which is a comprehensive guide to govern the placement, use, and respect given to the American flag. Importantly, the Flag Code does not issue penalties for non-compliance or enforcement provisions — it is simply a guide that could be followed. It is not law. There have been some great takes on the Flag Code appearing on the Internet over the past few days. My favorite comes to you in the form of a Twitter thread, which you can see below.
It’s important to note that the Bill of Rights was originally applied to only the federal government. States were free to do whatever they pleased until the early twentieth century when the Supreme Court began to incorporate the Bill of Rights into decisions that applied to the states. By the mid-1920s, the First Amendment was fully incorporated and applied to the states — and the local and state level governments — as well as the federal government. At this point, the Supreme Court had the opportunity to define speech and that’s exactly what they did.
However, the Court began defining speech prior to the twentieth century. The nineteenth century brought a number of cases that proved foundational to modern freedom of expression cases. Gitlow v. New York was the first case that used the First Amendment as precedent. Brandreth v. Lance was the first Supreme Court case that found a speech restriction to be a violation of the First Amendment. This case looked at the restriction of printed material and cited English Common Law that referenced paintings — and they determined that both could be considered libelous speech. In Commonwealth v. Batchelder, the Court discussed slander that could be distributed and circulated by means other than word of mouth.
Respublica v. Montgomery equated symbolic speech with verbal expression. Specifically, this case looked at whether the installation of a sedition pole during a “riot” or protest was speech. Both sides of this case (and arguably the Court, although they did skirt the issue) identified the sedition pole as speech against the government. William Blackstone, Martin Luther, and Alexander Hamilton all directly or indirectly alluded to speech including “signs or pictures” and agreed that the free press could be restricted by libel law. People v. Croswell identified libel as a “slanderous or ridiculous writing, picture, or sign, with a malicious or mischievous design or intent, towards government, magistrates, or individuals.” Basically, speech covered more than verbal speech — it included expressions.
Together, the cases above connect the dots to how freedom of expression is protected under the First Amendment today. Individually, the cases don’t paint a pretty picture… but together, you can trace the evolution of speech plus conduct.
In the twentieth century, the Court continued to uphold expression and conduct as speech. There are three primary cases that deal with symbolic speech in this era: United States v. O’Brien, Tinker v. Des Moines, and Spencer v. Washington.
United States v. O’Brien directly and overtly correlated symbolic expression and speech. After burning their Selective Service draft cards, O’Brien and others were indicted under a federal statute that penalized anyone who “forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes” a draft card. While the Court did not uphold burning a draft card as expressive speech, they did establish a test used to evaluate future cases. This test stated that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” In O’Brien, the government’s interest in maintaining the functionality of draft cards superseded First Amendment protections.
Tinker v. Des Moines addressed students who wished to protest the Vietnam War at school. School administrators learned of their plan and banned students from wearing an armband on school property. Regardless, three students wore armbands in protest to school and were sent home. The Court found that the prohibition on wearing armbands in school did violate the students’ guarantee of free speech. In order to prohibit speech, the Court argued that schools would have to take issue with more than the content — they would have to prove that prohibition was “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Spence v. Washington looked at symbolic expression and the American flag. In this case, a college student hung an upside American flag with peace signs taped on it from his apartment window — a protest against the invasion of Cambodia and the massacre at Kent State. He was arrested for violating Washington State’s flag desecration statute. The Court created a new constitutional test from this case. They argued that “[there has to be] an intent to convey a particularized message . . . present, and . . . likelihood was great that the message would be understood by those who viewed it.” As a result, the Court found that the flag, as hung, effectively communicated Spence’s message and that the statute could not be upheld.
And finally we’ve reached the flag desecration portion of this constitutional law lesson.
The Supreme Court has heard many cases regarding the American flag. They have found that the flag is symbolic speech — and they have also found that burning or destroying an American flag is protected speech. There are three major flag desecration cases in the United States: Street v. New York, Texas v. Johnson, and United States v. Eichman.
Street v. New York looked at a World War II veteran who burned a flag in protest of civil rights activist James Meredith’s death. Prior to burning the flag, the veteran, Sydney Street, placed a piece of paper on the sidewalk, set the flag on fire, and then placed it on the paper so it would not be directly touching the ground. He was arrested under a New York law that prohibited any mutilation or casting “contempt upon [the flag] by words or by act.” The Court, using the Spence test, reviewed the governmental interest in prohibiting flag burning. They considered four specific governmental interests and found that none of these interest could justify Spence’s indictment.
Texas v. Johnson is perhaps the most well known flag desecration case. Johnson burned an American flag as a political protest during the 1984 Republican National Convention in Dallas, Texas. While holding the burning flag, Johnson and other protesters yelled “America, the red, white, and blue, we spit on you, you stand for plunder, you will go under” and other phrases. Johnson was found in violation of a Texas flag desecration statute. Citing Stromberg and Tinker, the Court found that the First Amendment does protect non-speech acts (aka conduct) and used the Spence test to evaluate whether the non-speech act effectively communicated the message. They found that flag burning was symbolic speech. The Court took it one step further and found that state government and authorities did not have the power to designate symbols as “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
TADA! FLAG BURNING IS CONSTITUTIONAL.
But wait — after Texas v. Johnson was handed down, Congress passed the Flag Protection Act, which made it illegal to destroy an American flag or any likeness thereof. United State v. Eichman looked at repercussions of the flag burning protests broke out across the country after Congress’s new law was passed. Many individuals were indicted or violating the Flag Protection Act and the case made its way up to the Supreme Court. The Court found that the Flag Protection Act violated the First Amendment as the law’s specific interest was in suppressing free expression and was concerned with the content of said expression. Eichman affirmed the constitutionality of flag desecration as protected speech. It allows the people to decide what is and is not offensive to the nation — and then to act on those opinions and feelings to show the government how they feel.
ALL OF THIS IS TO SAY — YOU CAN PROTEST THE FLAG, THE NATIONAL ANTHEM, ANY AMERICAN SYMBOL HOWEVER THE HELL YOU WANT. It is your prerogative to determine how best to tell your government and your country how you feel — and there is no better way to communicate your displeasure than discomfort.
Kaepernick and others who have followed him took a knee for a purpose. Taking a knee is a sign of respect. They did something different in protest, but they did not sit, as that was seen as disrespectful to the flag and to the military. Rather, they protested civilly, just as many others have before them. This post is circulating Facebook, and I think it sums up the proper position on taking a knee quite nicely.
So if you are uncomfortable with folks protesting during the national anthem or protesting the American flag, think about why you are uncomfortable. In case you have missed quite literally all of American history, protests are supposed to make you uncomfortable. They are supposed to bring otherwise ignored issues forward. They are supposed to make you think.
And as a citizen of a country founded on protest, think about what makes you uncomfortable. Why does the action make you uncomfortable? You’re in a position to make the world a better place, a safer place, a place where people are not oppressed and can speak freely for their beliefs. The same Amendment that affords you the right to speak your mind affords Kaepernick and others to kneel during the anthem.
You still don’t accept that they have the right to protest and speak their minds? Well, sit down, shut the hell up, and read it again. Your rights are the same. The Constitution protects symbolic speech, protest, and so much more. Recognize that and stop being an asshole about your hurt feelings.
The United States of America was founded on protest, created out of protest to spite the King of England. So yes, protest is fucking patriotic. It’s in our blood. I hope you continue to kneel, continue to educate, and continue to learn from your fellow citizens. It’s how we will make our country better, it’s how we will heal.
P.S. If you want to respect the flag, this is pretty solid advice.
Also… this is not respecting the flag. This is being an asshat.
P.S.S. People keep pulling the “it disrespects the military!” card. I show you these. These are the opinions that matter.
