Protect Our Flag

Ed Feser argues that the burning of one’s country’s flag violates natural law and the U.S. Constitution, and that Texas v. Johnson was wrongly decided and should be overturned.

President Trump’s recent Executive Order on prosecuting the burning of the American flag has revived some longstanding moral and constitutional questions. In its 1989 decision Texas v. Johnson, the Supreme Court declared that desecration of the flag is protected by the First Amendment to the U.S. Constitution. Many claim that, even apart from this decision, a person has a moral right to express himself by way of flag burning, especially if the flag being burned is his own private property.

To be sure, the Executive Order itself is, on a close inspection, less radical than some have supposed. It does not pretend to undo the Court’s decision, but emphasizes finding ways to prosecute those who happen to burn the flag in connection with other offenses. But it provides a good occasion to revisit the more fundamental questions. Was the Supreme Court right to hold that flag burning is speech protected by the First Amendment? And do individuals have, in any event, a moral right to flag desecration? I would answer both questions in the negative. Let’s consider them in reverse order.

Natural law and flag burning

It should go without saying that what is at issue here is the burning of one’s country’s flag, specifically. I am not claiming that it is always necessarily wrong to burn flags of other kinds. Nor, of course, can it be denied that there are some conceivable circumstances where it would be licit to burn one’s country’s flag – for example, if it had somehow become contaminated with deadly pathogens and had to be destroyed so as to prevent infection.

What is at issue is whether it is licit to burn one’s own country’s flag as an act of protest, and in particular as an expression of hostility or contempt for what the flag represents. This sort of act, I argue, is immoral. Some critics will object that this is merely an emotional response. That people feel offended by the practice does not, they will say, entail that it is wrong.

It is certainly true that flag burning generates strong emotions. But the critics who dismiss opposition to it as grounded in nothing more than emotion get things backwards. It’s not that people judge flag burning to be immoral because they find it offensive. Rather, they find it offensive because they judge it to be immoral.

To be sure, the average person may not be able to give a philosophically sophisticated explanation of why he judges it to be immoral. But that’s true of most commonsense moral judgments. The average person is also unlikely to be able to give a sophisticated explanation of why adultery, stealing, oreven murder are wrong. That hardly entails that he is mistaken in judging these things to be immoral. And neither is he wrong to judge flag burning to be immoral. His negative emotional reaction to it – like his negative emotional reaction to adultery, stealing, and murder – reflects an inchoate understanding that these practices are all contrary to natural law.

The key to understanding why flag burning is wrong lies in what St. Thomas Aquinas calls the virtue of piety. Piety is the disposition to show gratitude and respect for those on whom one depends in a fundamental way. For example, one owes such gratitude and respect to one’s parents, and ultimately to God above all. But in between one’s parents and God comes one’s country, on which one also depends and to which one also owes gratitude and respect. Patriotism is thus a component of piety, analogous to the honor one owes one’s parents and the reverence one owes God. Hence, just as it is wrong to show contempt for one’s parents or to blaspheme against God, so too is it wrong to show disrespect and ingratitude toward one’s country.

This is what flag burning does, and that is the reason most people find it so offensive. Defenders of flag burning lump it in with criticism of political leaders or of government policy, but it is not at all like that. The flag does not represent this or that leader, party, or policy, nor does it represent even any particular form of government. It represents the country itself. The flag burner is not like someone who merely disagrees with his father. Rather, he is like someone who publicly burns a picture of his father or otherwise publicly shows contempt for him. Political disagreements are like quarrels between family members. Flag burning, by contrast, is like declaring that one not only disagrees with other family members, but has contempt for the family itself.

Now, just as patriotism, on Aquinas’s analysis, falls under the virtue of piety, piety in turn falls under the virtue of justice. In this way, flag burning is a sin against justice, because it iscontrary to the respect and gratitude to which one’s country, like one’s parents and God, is entitled. But it is also a sin against charity. In particular, sins that tend to undermine the unity of a social order (such as discord and schism) fall, on Aquinas’s analysis, under the category of sins contrary to charity. And flag burning of its nature tends to undermine unity. For the flag burner’s act evinces his own alienation from the larger social order, and by its public nature it tends to (and indeed is typicallyintended to) encourage others to feel a similar alienation.

If parents tolerated such expressions of insolence from their children, their authority would be undermined and the stability of the family threatened. For a country to tolerate public expressions of contempt for it such as flag burning tends to destabilize it in a similar way. That is not to say that the analogy is exact or the danger as grave. Obviously, one or two insolent children in a family of six are more destabilizing than one or two flag burners in a nation of sixty million. All the same, because flag burning of its nature tends to undermine unity to some extent, the more common it becomes and the more tolerant people are of it, the greater the disunity that will prevail in a country.

The state thus has a legitimate interest in curbing it. To be sure, making flag burning illegal may, under certain circumstances, do more harm than good. Hence there may be practical reasons why, though a government has a right to make flag burning illegal, it would be better for it not to exercise that right. The point, though, is that it does have that right under natural law. Whether to exercise it is a matter of applying the virtue of prudence to concrete circumstances of time and place.

But don’t individuals themselves have a moral right to express themselves in this way, even if we concede that it would be better for them not to do so? Isn’t this especially so if the flag they burn is their own private property? The answer to both questions is No, at least given the account of rights developed by natural law theorists in the Aristotelian-Thomistic tradition.

As I explained in a previous Postliberal Order essay, according to natural law theory, rights have a teleological basis. That is to say, they exist for a purpose, namely the purpose of facilitating the realization of the ends set for us by our nature. For example, as rational social animals, we are by nature directed or aimed toward discovering what is true and good and communicating itto others. We could not do this if others were at liberty arbitrarily to interfere with our attempts to communicate it. Hence we must, under natural law, have the right not to be interfered with in that way. This is the foundation of the right to free speech. It is better thought of as the right to express what is true and good.

But if communicating what is true and good is the aim or point of the right to free speech, then there can hardly be a right to communicate what is false or evil. Now, this does not entail that your speech can be interfered with merely because some other particular individual, or the government, or the majority of one’s fellow citizens judges that what you are saying is wrong. For their judgment might itself be wrong. And the way we typically find out which side is wrong is through the give and take of debate. Hence, though there is no right to express error as such, the right to free speech nevertheless must be broad enough to tolerate a certain amount of error.

All the same, since we are by nature rational social animals, the right to free speech cannot be so broad that it would allow for speech that is positively destructive of reason itself or of the very social order. That would be perverse. Hence governments can legitimately suppress speech that tends to be destructive either of reason or of the social order. This is why, as even the most ardent advocates of free speech typically acknowledge, it is perfectly legitimate for a government to suppress speech that attempts to incite others to violence, or which defames others. The natural law theorist simply points out that there are also other, less extreme cases where governments have the right to suppress speech that is inherently subversive of the social order. And that remains true even when there may be good circumstantial reasons for a government not to exercise that right in a particular case.

What is true of the right to free speech is, according to natural law theory, true also of the right to private property. That right too exists in order to facilitate our flourishing as rational social animals. As I have argued elsewhere, when worked out in detail, the natural law account of property entails a wide-ranging right to use our possessions as we see fit. But that right too has limits. It cannot be so broad as to permit what is positively destructive of either reason or the social order.

In light of these principles, we can see that because flag burning of its nature tends to be corrosive of the social order, a person’s rights to free speech and to his private property cannot be strong enough to entail a right to burn the flag. There simply can be no such right under natural law. Again, it may nevertheless be imprudent, under certain circumstances, for a government to suppress the practice of burning the flag. The point, though, is that it would not be unjust for a government to do so.

The constitution and flag burning

Even readers who sympathize with this argument may judge it to be moot. Suppose that natural law theory would indeed permit a government to suppress flag burning. The U.S. Constitution, it might be objected, nevertheless does not permit this. So, the reader might conclude, natural law considerations are of purely academic interest. For all practical purposes, the question has been settled in favor of the flag burners, at least in the American context.

But there are two problems with this reply. First, the overturning of Roe v. Wade should make anyone think twice before confidently asserting that some controversial matter of constitutional law has been settled. And Texas v. Johnson, I would argue, was, like Roe, simply wrongly decided. The Framers of the Constitution did not lay the foundation for a right to flag burning any more than they laid the foundation for a right to abortion. Many conservatives suppose otherwise because Justice Antonin Scalia sided with the liberal majority. But ironically, dissenting liberal justice John Paul Stevens was closer to the truth when he stated that the majority were essentially “judicial activists” when pretending to find a right to flag burning in the First Amendment.

The First Amendment rules out laws “abridging the freedom of speech, or of the press.” But no one supposes that the Framers intended this in an unqualified sense. For example, no one thinks they intended to rule out laws prohibiting libelous speech or speech that incites violence. And if the words of the First Amendment do not protect even all forms of speech, they can hardly be said to protect also “all expression” beyond speech (as Scalia claimed they do).

Certainly the First Amendment was intended to protect the expression of certain ideas. But as Stevens and Justice William Rehnquist pointed out in their dissenting opinions on Texas v. Johnson, to prohibit flag burning would in no way prevent the expression of any idea. For any idea the flag burner might want to express in that way could be expressed instead in another way, such as in words. Moreover, while Scalia was correct to hold that the First Amendment was intended to protect “speech critical of the government,” it is simply a non sequitur to conclude that this protects flag burning. For as I argued above, flag burning goes beyond merely criticizing a particular official,administration, party, policy, or even form of government. It is an expression of contempt for the country itself.