President Trump’s Executive Order that “directs the Attorney General to vigorously prosecute” those who desecrate the American flag and “pursue litigation to clarify the scope of First Amendment in this area” hit a nerve with many. Whatever you think about desecrating the flag, it exposed the difference between real conservatives and libertarians and fake ones when it comes to Free Speech.
An excellent summary example what I’ve read about Trump’s order is the statement made by the Foundation for Individual Rights and Expression (FIRE). It has done some great work protecting words spoken by college students from censure by woke administrators, but it misfired on this one. Its Chief Counsel said:
President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t. Flag burning as a form of political protest is protected by the First Amendment.
I reject both propositions. I think a real conservative would.
No. Still in the U.S. Code is 18 USC 700 called the Flag Protection Act of 1989. Its title is “Desecration of the flag of the United States; penalties.” Trump has ordered the Department of Justice, which is part of the executive branch, to enforce the law. He isn’t making up anything.
It is true that the U.S. Supreme Court in United States v. Eichman, 496 U.S. 310 (1990), held that the Act “cannot constitutionally be applied to the petitioners,” the persons prosecuted for its violation. But notice the key words “to the petitioners.”
A real conservative knows the nature of the judicial power is judgment—to resolve a particular dispute—and not law. Federalist Paper 78. The Court can no more “make law” for the nation by its judgments and supporting essays than I can by this commentary.
That is why the Act is still in the Code. It alone has law-making power. Congress didn’t repeal the law. The executive branch, until Trump, just didn’t enforce it against others.
No, because a real conservative believes in the constitutional precept called the separation of powers.
James Madison explained it this way in Federalist Paper 49:
“The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers”
Recognizing this precept, Abraham Lincoln said the following in his First Inaugural Address respecting the Court’s infamous Dred Scott decision:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges.
Whether I like the Flag Protection Act is irrelevant. I appreciate someone who understands the nature and form of government established by our Constitution, and won’t resign our government into the hands of nine un-elected, life-tenured justices.
The Free Speech Clause protects “speech” which I’ll define in a moment. But the history of the Court’s redefinition of the word “speech” is important. It was set forth in 1974 in Spence v. State of Washington. The Court said:
The Court for decades has recognized the communicative connotations of the use of flags. E. g., Stromberg v. California, 283 U. S. 359 (1931). In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas . . . ," and "a short cut from mind to mind." Board of Education v. Barnette, 319 U. S. 624, 632 (1943). On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol.
This “symbolism,” introduced in 1931, was what the Spence Court called “protected expression.” I don’t see “expression” in the text of the First Amendment. So let’s probe this further.
While speech is expressive, the communication of ideas or meaning by symbols is field of study called semiotics. Essentially, the Court wrote this field of study into the Constitution’s text without pointing to any legal or common law precedent for doing so. That’s what makes the history of semiotics so important to the meaning of the word “speech” in the Constitution’s text.
John Neely, in his monograph, The Beginning of Postmodern Time or: Charles Sanders Pierce and the Recovery of Signum (2000) notes that St. Augustine (354 to 430 A.D.) was “the first thinker of record to forge a general notion of sign as a genus to which natural and cultural phenomena alike are species.” In fact, “the Latin notion of signs, ‘signum’, was developed over the 1200 or so years of Latin (Medieval) Period.”
However, what is interesting about this in relation to the Court’s 1931 inclusion of “semiotics” within the meaning of the noun “speech” is Charles Pierce. By Pierce’s time (1839-1914), “the Latin notion of signum, its origin, development, and vindication . . . had passed into oblivion, forgotten to all present contributors to the discussion of philosophy.” Id. (Emphasis supplied). Beginning in 1860, Pierce began “to recover the Latin notion of signum very nearly at the point where the Latins had left it.” (emphasis supplied)
The First Amendment was approved by Congressional Resolution on March 4, 1789. Query:
If the notion of semiotics had passed into “oblivion” until Pierce resurrected it in the 1860’s, could the members of Congress intended for “expression” by signs (signum) to be within the meaning of the word “speech”?
A polite answer is “Heck No!” In other words, by 1931, the U.S. Supreme Court had written into the constitution a concept lost until the 1860. It was not part of how the writers of our Constitution would have thought of the word “speech”! But, by the time of Spence in 1974, the states had “conceded, as did the Washington Supreme Court, that altering the flag was “a form of communication.” Fake conservatives are still doing that.
But this negation of semiotic meaning for the word “speech” is bolstered by the history of that word that was also overlooked.
Not only would those who approved the language of the First Amendment not thought in terms of semiotics, but consider the historical meaning of the word “speech," a noun.
The English word “speech,” etymologically, “comes from the Middle English speche [and] from Old English spæc "act of speaking; power of uttering articulate sounds; manner of speaking; statement, discourse, narrative, formal utterance; language. . . . See speak (v.).” See also Joseph Bosworth’s 1858 work, A compendious Anglo-Saxon and English dictionary: “Speac ‘to speak.’”
Given the etymological relation between the noun “speech" and the verb “speak”, consider Samuel Johnson’s 1766 work, A Dictionary of the English Language: in which the words are deduced from their originals, explained in their different meanings and authorized by the names of the writers in whose works they are found. “To Speak” means, “To utter articulate sounds ; to express thoughts by words.” (emphasis supplied)
Those who wrote and those who ratified the Free Speech Clause were thinking of spoken words, not the semiotics of “expression” by signs and symbols.
I don’t know what the President’s end game is, but it is time conservatives tell it like it is: The U.S. Supreme Court that has written into the First Amendment’s text—the word “speech”—a meaning that could not have been intended. It revised the Constitution!
And real conservatives are not like “fake” conservatives and libertarians. Real conservative don’t ascribe a law-making power to the federal judiciary and don’t acquiesce to the Supreme Court rewriting the text of the Constitution.
Congress and the states are not constitutionally compelled to allow the burning of the flag, but neither are they prohibited by the Free Speech Clause from protecting it.
Now let’s have a democratic debate on what makes for good flag policy! Liberals should appreciate real conservatives trying to save their democracy.
