Trump, the New York Times, and the Constitution: Who Needs an Education?

Freedom of speech is a topic upon which liberal thinking is perhaps a little idiosyncratic.  Leftists – the current attorney general of the United States being only one example – call rioting protest and invoke the First Amendment.  They discern protected speech in nude dancing, obscenities on T-shirts that refer to the draft, simulated child pornography, and panhandling on the public streets.  But they consider it outrageous that the First Amendment should protect the right of people to make a film criticizing a political figure by first forming a corporation to produce and distribute it.

When we come to the specific issue of burning things as political demonstration, there are again nuances to interpret.  Liberals will not put up with Christian preachers who burn the Koran.  That is Islamophobia and hate speech.  So are films that mock the Prophet, like the one whose maker was hustled off to jail in the wake of the Benghazi massacre, bolstering the Obama administration's canard about the cause of that calamity.  Director Martin Scorsese and actor Willem Dafoe, on the other hand, escaped a similar fate for The Last Temptation of Christ.  That was mere anti-Christian blasphemy – obviously protected speech.

Burning the American flag is the topic of a recent New York Times editorial, prompted by the president-elect's tweet that those so expressing themselves should get a year in the clink and maybe lose their citizenship.  The Times rejoins that Mr. Trump, in swearing to uphold the Constitution, will not "know[] what he's talking about" and it should be unnecessary to explain that "flag-burning is constitutionally protected speech."  The editorial refers to an opinion of the United States Supreme Court, Texas v. Johnson (1989).  The decision was 5-4, so apparently four of the justices, including Chief Justice Rehnquist, also did not know what they were talking about or grasp what should require no explanation.  The Times, like all exponents of this jurisprudence, is quick to point out that Justice Scalia, conservative titan, voted with the majority.  The fact that Justice Stevens, usually thought to be in the other camp, wrote in dissent is not worthy of mention.  Noting which justices voted which way, in any event, does not establish the merits of a Supreme Court ruling.

Writing for the majority in Johnson, Justice William Brennan found that burning the flag in public is "expressive conduct," constituting protest of the 1984 Republican convention and its renomination of Ronald Reagan.  The act "was conduct 'sufficiently imbued with elements of communication' ... to implicate the First Amendment."  The Court determined this by asking "whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it" (emphasis supplied; citation omitted).  The answer to each of these questions was an unequivocal "yes," since the flag-burning coincided with the Republican convention, and the defendant, Mr. Johnson, said he did it "as Ronald Reagan was being renominated as President."

The State of Texas, perhaps improvidently, conceded for the sake of argument that the burning was expressive conduct.  It relied on the act's constituting a breach of the peace.  But it was not a breach of the peace, Justice Brennan explains, for the State of Texas "fails to show that a disturbance of the peace was a likely reaction to Johnson's conduct."  A breach of the peace, then, occurs only when the subject action is likely to provoke a violent reaction by those present, by which formulation the learned Court would appear to exempt the St. Valentine's Day Massacre from the category of breaches of the peace.  Black's Law Dictionary defines "breach of the peace" as "[a] violation or disturbance of the public tranquility and order. The offense of breaking or disturbing the public peace, by any riotous, forcible, or unlawful proceeding."  Does setting something afire along a public thoroughfare in a display of contumacious destruction not  fall within that category?  Would a public book-burning not do so?

But Justice Brennan has more to say in furtherance of his position.  He wishes to remove flag-burning from the category of "fighting words" defined, he says, in the 1942 decision, Chaplinsky v. New Hampshire, as "likely to provoke the average person to retaliation, and thereby cause a breach of the peace."  This category plainly has no applicability to public burning of the American flag since "[n]o reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs" (emphasis supplied).  And so what was a "particularized message" when the objective was to label it political expression turns into a "generalized expression" when the time comes to deny that it is likely to provoke anyone.

Now, we might surmise that there are fairly reasonable Americans, if not Justice Brennan and his social acquaintances, who would find the scornful burning of their nation's flag an incitement.  But we will neither dwell on that nor ponder when, in Justice Brennan's estimation, a "reasonable onlooker" chooses to "exchange fisticuffs."

The analysis of the court in Chaplinski actually is not confined to the provocation of violence, though it says the utterances at issue there might have had that effect.  Mere epithets and abuse "are no essential part of any exposition of ideas, and are of such light social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."  Thus does the Chaplinski court articulate what long had been understood the purpose of the free speech clause: to foster the dissemination of argument and information, particularly regarding politics.  Obscene abuse does not do that, and neither, certainly, does setting fire to something.  It really does not have anything to do with stifling a man's viewpoint – Johnson could have said whatever he wanted about the country and its flag.  Setting fire to an object to destroy it (we speak not of candlelight vigils) indeed reveals the actor's passions, but it is not expressing a viewpoint.  You can readily tell how he feels, just as you can with one who pours blood on the steps of the Pentagon, or paints a swastika on a house of worship.  But does that bring the act into the realm of even faulty discourse?  What should those disagreeing with Mr. Johnson's "viewpoint" have set ablaze as counter-speech?

This is not even akin to such sanctified "symbolic speech" as wearing black armbands to protest the Vietnam War, or displaying the flag with a peace symbol superimposed.  In affording constitutional protection there, the Court, at least, could reason that no destructive act was involved and something like lamentation for war's carnage and association of the national well-being with peace was implied – more than a "generalized expression" of hatred for the Republic.

It is necessary to add that in dismissing the First Amendment interpretation of Texas v. Johnson, we do not imply that a municipality or state should criminalize flag-burning or that it should not.  There are perfectly good reasons why a city or state might decline to prosecute such behavior, including law enforcement priorities, economy of police and judicial resources, or a desire not to confer martyrdom on the perpetrator.  The president-elect's reference to people losing their citizenship – banishment for dishonoring the realm, in effect – contemplates what simply is not on the menu of constitutional punishments.

Whether anyone is prosecuted for burning the flag is not so important as the Constitution's remaining the foundation of our civic comity and nationhood.  Leftist activist jurisprudence turns the Constitution into the people's enemy.  The odious First Amendment protects burning the flag, protects the display at public expense of obscene or scatological representations of Christian symbols, yet prohibits prayer in the schools, benedictions at graduations, and images of the Ten Commandments in courthouses.  Let anyone seeking explanation for Mr. Trump's election take account of this anomaly, among many other things.

Freedom of speech is a topic upon which liberal thinking is perhaps a little idiosyncratic.  Leftists – the current attorney general of the United States being only one example – call rioting protest and invoke the First Amendment.  They discern protected speech in nude dancing, obscenities on T-shirts that refer to the draft, simulated child pornography, and panhandling on the public streets.  But they consider it outrageous that the First Amendment should protect the right of people to make a film criticizing a political figure by first forming a corporation to produce and distribute it.

When we come to the specific issue of burning things as political demonstration, there are again nuances to interpret.  Liberals will not put up with Christian preachers who burn the Koran.  That is Islamophobia and hate speech.  So are films that mock the Prophet, like the one whose maker was hustled off to jail in the wake of the Benghazi massacre, bolstering the Obama administration's canard about the cause of that calamity.  Director Martin Scorsese and actor Willem Dafoe, on the other hand, escaped a similar fate for The Last Temptation of Christ.  That was mere anti-Christian blasphemy – obviously protected speech.

Burning the American flag is the topic of a recent New York Times editorial, prompted by the president-elect's tweet that those so expressing themselves should get a year in the clink and maybe lose their citizenship.  The Times rejoins that Mr. Trump, in swearing to uphold the Constitution, will not "know[] what he's talking about" and it should be unnecessary to explain that "flag-burning is constitutionally protected speech."  The editorial refers to an opinion of the United States Supreme Court, Texas v. Johnson (1989).  The decision was 5-4, so apparently four of the justices, including Chief Justice Rehnquist, also did not know what they were talking about or grasp what should require no explanation.  The Times, like all exponents of this jurisprudence, is quick to point out that Justice Scalia, conservative titan, voted with the majority.  The fact that Justice Stevens, usually thought to be in the other camp, wrote in dissent is not worthy of mention.  Noting which justices voted which way, in any event, does not establish the merits of a Supreme Court ruling.

Writing for the majority in Johnson, Justice William Brennan found that burning the flag in public is "expressive conduct," constituting protest of the 1984 Republican convention and its renomination of Ronald Reagan.  The act "was conduct 'sufficiently imbued with elements of communication' ... to implicate the First Amendment."  The Court determined this by asking "whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it" (emphasis supplied; citation omitted).  The answer to each of these questions was an unequivocal "yes," since the flag-burning coincided with the Republican convention, and the defendant, Mr. Johnson, said he did it "as Ronald Reagan was being renominated as President."

The State of Texas, perhaps improvidently, conceded for the sake of argument that the burning was expressive conduct.  It relied on the act's constituting a breach of the peace.  But it was not a breach of the peace, Justice Brennan explains, for the State of Texas "fails to show that a disturbance of the peace was a likely reaction to Johnson's conduct."  A breach of the peace, then, occurs only when the subject action is likely to provoke a violent reaction by those present, by which formulation the learned Court would appear to exempt the St. Valentine's Day Massacre from the category of breaches of the peace.  Black's Law Dictionary defines "breach of the peace" as "[a] violation or disturbance of the public tranquility and order. The offense of breaking or disturbing the public peace, by any riotous, forcible, or unlawful proceeding."  Does setting something afire along a public thoroughfare in a display of contumacious destruction not  fall within that category?  Would a public book-burning not do so?

But Justice Brennan has more to say in furtherance of his position.  He wishes to remove flag-burning from the category of "fighting words" defined, he says, in the 1942 decision, Chaplinsky v. New Hampshire, as "likely to provoke the average person to retaliation, and thereby cause a breach of the peace."  This category plainly has no applicability to public burning of the American flag since "[n]o reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs" (emphasis supplied).  And so what was a "particularized message" when the objective was to label it political expression turns into a "generalized expression" when the time comes to deny that it is likely to provoke anyone.

Now, we might surmise that there are fairly reasonable Americans, if not Justice Brennan and his social acquaintances, who would find the scornful burning of their nation's flag an incitement.  But we will neither dwell on that nor ponder when, in Justice Brennan's estimation, a "reasonable onlooker" chooses to "exchange fisticuffs."

The analysis of the court in Chaplinski actually is not confined to the provocation of violence, though it says the utterances at issue there might have had that effect.  Mere epithets and abuse "are no essential part of any exposition of ideas, and are of such light social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."  Thus does the Chaplinski court articulate what long had been understood the purpose of the free speech clause: to foster the dissemination of argument and information, particularly regarding politics.  Obscene abuse does not do that, and neither, certainly, does setting fire to something.  It really does not have anything to do with stifling a man's viewpoint – Johnson could have said whatever he wanted about the country and its flag.  Setting fire to an object to destroy it (we speak not of candlelight vigils) indeed reveals the actor's passions, but it is not expressing a viewpoint.  You can readily tell how he feels, just as you can with one who pours blood on the steps of the Pentagon, or paints a swastika on a house of worship.  But does that bring the act into the realm of even faulty discourse?  What should those disagreeing with Mr. Johnson's "viewpoint" have set ablaze as counter-speech?

This is not even akin to such sanctified "symbolic speech" as wearing black armbands to protest the Vietnam War, or displaying the flag with a peace symbol superimposed.  In affording constitutional protection there, the Court, at least, could reason that no destructive act was involved and something like lamentation for war's carnage and association of the national well-being with peace was implied – more than a "generalized expression" of hatred for the Republic.

It is necessary to add that in dismissing the First Amendment interpretation of Texas v. Johnson, we do not imply that a municipality or state should criminalize flag-burning or that it should not.  There are perfectly good reasons why a city or state might decline to prosecute such behavior, including law enforcement priorities, economy of police and judicial resources, or a desire not to confer martyrdom on the perpetrator.  The president-elect's reference to people losing their citizenship – banishment for dishonoring the realm, in effect – contemplates what simply is not on the menu of constitutional punishments.

Whether anyone is prosecuted for burning the flag is not so important as the Constitution's remaining the foundation of our civic comity and nationhood.  Leftist activist jurisprudence turns the Constitution into the people's enemy.  The odious First Amendment protects burning the flag, protects the display at public expense of obscene or scatological representations of Christian symbols, yet prohibits prayer in the schools, benedictions at graduations, and images of the Ten Commandments in courthouses.  Let anyone seeking explanation for Mr. Trump's election take account of this anomaly, among many other things.