Testing the First Amendment: A Trial by Fire

Since the election of Donald Trump, many Americans have taken to the streets in protest of his impending presidency and its potential consequences. Among many of these demonstrations, the act of flag burning has earned a considerable amount of attention. Increased attention on this demonstration has left discussion of the actual reasons for the protest on the back burner.

In a tweet last week, President-elect Trump called for the punishment of individuals who burn the American flag – by imprisonment or even a loss of citizenship.

Trump’s proposal is not only unconstitutional, but dangerous. His suggestion of punishment for symbolic protest infringes upon the principle of freedom of speech enshrined in the First Amendment and symbolized by the flag itself.

Thankfully, most conservative news outlets do not share Trump’s extreme vision for the criminalization of flag-burning. Still, there has still been a extensive amount of conservative criticism about the practice as being anti-American and radical.

The Blaze’s Tomi Lahren, a conservative commentator, weighed in on the emergent protests, concluding that “you know you’re on the right side when the losers are burning flags.” She went on to label the protesters as “crybabies,” under the assumption that these protesters were solely upset about losing the election.

Moreover, all uses of the flag for protest are being heavily criticized.

Last week on The O’Reilly Factor, anchor Bill O’Reilly interviewed a swell of Americans who denounced the president of Hampshire College and the college’s students as “insensitive” and “disrespectful” for refusing to fly the American flag on campus.

Flag burning has twice been affirmed as a constitutional right in the Supreme Court cases Texas v. Johnson and U.S. v. Eichman under the Flag Protection Act. Both times the court ruled that due to the First Amendment to the United States Constitution, it is unconstitutional for a government ─whether federal, state, or municipality─ to prohibit the desecration of a flag, due to its status as “symbolic speech.”

Flag burning is not the first controversial form of symbolic speech used in protest, despite its protection under the constitution.

Draft card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Again, the act was defended as a symbolic form of free speech.

There is little-to-no way to actually police flag desecration as it would require excessive amounts of surveillance that would likely increase protester animosity. Such forms of symbolic protest have always taken place in American history and it doesn’t seem that the practice will be dying out anytime soon.

It stands then to be asked: what good is the unconditional veneration of a symbol if what that symbol represents is not being upheld in actuality? And is the investigation of these injustices not a more worthwhile usage of journalistic efforts?

Television pundits are within their right to openly oppose flag burning. However, where these critics dedicate large amounts of time and energy to condemning a constitutionally protected right to no avail, they thereby omit valuable analysis of the issues which motivate the flag-burning.

Many of the individuals who are burning flags are speaking out on behalf of communities and groups that fear for their actual lives, and are no less American for doing so. Under the impending Trump administration, these fears have already begun to show themselves with an increase in hate crimes against Muslims, immigrants, people of color and women across the country – often in the name Trump.

Given these serious grievances, it may be prudent for these analysts to minimize coverage of a constitutionally protected form of protest in order to pursue more productive conversation about the issues that predate and contextualize these demonstrations.

To demonize those who burn the flag or to belittle an entire protest as a petulant outburst without due acknowledgement of the conditions of the protest is not only negligent journalism, but implies that these pundits value an American symbol more than they do American lives and voices.

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