I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.

What?

Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.

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Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decision — firmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12. As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

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