The Flag Flap

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are many curious aspects to the latest flag fracas. There is
the absurdity of the proposed change in our basic constitutional
framework by treating such minor specifics as a flag law. There
is the proposal to outlaw "desecration" of the American
flag. "Desecration" means "to divest of a sacred
character or office." Is the American flag, battle emblem
of the U.S. government, supposed to be "sacred"? Are
we to make a religion of statolatry? What sort of grotesque
religion is that?

what is "desecrate" supposed to mean? What specific
acts are to be outlawed? Burning seems to be the big problem,
although the quantity of flag-burning in the United States seems
to be somewhere close to zero. In fact, most flag burning occurs
when patriotic groups such as the American Legion and the Veterans
of Foreign Wars solemnly burn their worn-out American flags
in the prescribed manner.

if burning the flag is to be banned, are we to clap numerous
American Legion or VFW people in the hoosegow? Oh, you say that
intent is the crucial point, and that you want to outlaw hippie
types who burn U.S. flags with a sneer and a curse. But how
are the police supposed to figure out intent, and make sure
that the majesty of the law falls only upon hippie-sneerers,
and spares reverent, saluting Legionnaires?

if the supporters of the proposed flag amendment are mired in
absurdity, the arguments of the opponents are in almost as bad
a shape. Civil libertarians have long placed their greatest
stress on a sharp difference between "speech" and
"action," and the claim that the First Amendment covers
only speech and not actions (except, of course, for the definite
action of printing and distribution of a pamphlet or book, which
would come under the free press clause of the First Amendment).

as the flag amendment advocates point out, what kind of "speech"
is burning a flag? Isn’t that most emphatically an action –
and one that cannot come under the free press rubric? The fallback
position of the civil libertarians, as per the majority decisions
in the flag cases by Mr. Justice Brennan, is that flag burning
is "symbolic" speech, and therefore, although an action,
comes under the free speech protection.

"symbolic speech" is just about as inane as the "desecration"
doctrine of the flag-law advocates. The speech/action distinction
now disappears altogether, and every action can be excused and
protected on the ground that it constitutes "symbolic speech."

for example, that I were a white racist, and decided to get
me a gun and shoot a few blacks. But then I could say, that’s
OK because that’s only "symbolic speech," and political
symbolic speech at that, because I’m trying to make a political
argument against our current pro-black legislation.

who considers such an argument far-fetched should ponder a recent
decision by a dotty leftist New York judge to the effect that
it is "unconstitutional" for the New York subway authorities
to toss beggars out of the subway stations. The jurist’s argument
held that begging is "symbolic speech," and expressive
argument for more help to the poor. Fortunately, this argument
was overturned on appeal, but still "symbolic arguers"
are everywhere in New York, clogging streets, airports, and
bus terminals.

is no way, then, that flag laws can be declared unconstitutional
as violations of the First Amendment. The problem with flag
laws has nothing to do with free speech, and civil libertarians
have gotten caught in their own trap because they do in fact
try to separate speech and action, a separation that is artificial
and cannot long be maintained.

in the case of all dilemmas caused by the free speech doctrine,
the entire problem can be resolved by focusing, not on a high-sounding
but untenable right to freedom of speech, but on the natural
and integral right to private property and its freedom of use.
As even famed First Amendment absolutist Justice Hugo Black
pointed out, no one has the free-speech right to burst into
your home and harangue you about politics.

right to freedom of speech" really means the right to hire
a hall and expound your views; the "right to freedom of
press" (where, as we have seen, speech and action clearly
cannot be separated) means the right to print a pamphlet and
sell it. In short, free speech or free press rights are a subset,
albeit an important one, of the rights of private property:
the right to hire, to own, to sell.

our eye on property rights, the entire flag question is resolved
easily and instantly. Everyone has the right to buy or weave
and therefore own a piece of cloth in the shape and design of
an American flag (or in any other design) and to do with it
what he will: fly it, burn it, defile it, bury it, put it in
the closet, wear it, etc. Flag laws are unjustifiable laws in
violation of the rights of private property. (Constitutionally,
there are many clauses in the Constitution from which private
property rights can be derived.)

the other hand, no one has the right to come up and burn your
flag, or someone else’s. That should be illegal, not because
a flag is being burned, but because the arsonist is burning
your property without your permission. He is violating your
property rights.

the way in which the focus on property rights solves all recondite
issues. Perhaps conservatives, who proclaim themselves defenders
of property rights, will be moved to reconsider their support
of its invasion. On the other hand, perhaps liberals, scorners
of property rights, might be moved to consider that cleaving
to them may be the only way, in the long run, to insure freedom
of speech and press.

N. Rothbard
(1926–1995) was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, The
Case Against the Fed
, and many
other books and articles
. He
was also the editor – with Lew Rockwell – of The
Rothbard-Rockwell Report

Rothbard Archives

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