Long May It Wave
Antonin Scalia, the celebrated conservative justice of the Supreme Court, is probably most remembered for the majority opinion he wrote in the landmark case Texas v. Johnson. Johnson was a demonstrator at the Republican convention held in Dallas in 1984. Part of his protest that day included dousing an American Flag with kerosene and setting it on fire. He was arrested and his case made it all the way to the Supreme Court.
The Court, like the country, was divided on the issue of Flag burning and ended up in a 5-4 decision protecting Johnson’s right to burn the Flag. Scalia, arguably the most conservative justice on the court, surprisingly wrote the controversial decision.
His opinion was criticized all over the United States and lawmakers pledged to pass a Constitutional Amendment to protect the flag, despite the “liberal” decision of the Court. Even Scalia’s wife, Maureen, hummed “You’re a Grand Old Flag” while she fixed breakfast and laid out the article announcing the decision from the Washington Post for her husband. There was no doubt where opinion fell at home.
Like many Americans, I was raised to stand and put my right hand over my heart when the flag is presented or the National Anthem is played. As a teacher, I taught my students the same actions and respect during the daily Pledge of Allegiance and the National Anthem at school events. These patriotic rituals are important for developing a sense of pride, respect, and love of our country.
But Scalia’s opinion, beautifully written and very persuasive, lays out why we, as Americans, must protect the rights of protest and free speech. He states, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . ”.
Many find the idea of burning a flag offensive, even angering, but the First Amendment protects political speech and actions—in the end because the ability to speak out protects all of us. I can question government actions and corruption, and I am protected even if my views are unpopular.
The First Amendment is not absolute, however. The time, place, and manner of the speech must be appropriate or it is not protected. For example, I cannot go into a Catholic mass and march up and down the aisles yelling phrases supporting the Pro-Choice agenda. The time, place, and manner is wrong. But if I do that same thing at a rally in front of the State Capitol as legislators are considering funding for Planned Parenthood, I’m completely in my right.
Even groups such as the KKK and Neo-Nazis have the right to assemble and express their views, no matter how offensive they are, if the time, place, and manner are correct. In Charlottesville, the hate groups had permits, and although this protest escalated tragically, the people who followed the rules were protected under the law. However, inciting violence is never protected.
One of my favorite stories is from Wunsiedel, Germany, a small town where a yearly Nazi march took place. A group of citizens, sick of the yearly march, took pledges from residents and local businesses to benefit an anti-Nazi organization. Every meter the Nazis marched was recorded, and pledges were collected based on the total. Taking the name “Nazis Against Nazis”, the town displayed hundreds of signs and banners thanking the Nazis for their support along the route, including a banner at the finish proclaiming their impressive €10,000 total raised. An article describing the event is here: https://thinkprogress.org/german-town-pranked-neo-nazis/
Makes one wonder if the NFL could raise money for the American Legion to help smooth things over. Maybe pledges of $100 for each player taking a knee? The rights of the individuals protesting would be protected, but a gesture showing respect for the Flag would soothe conflicts.
Hmm, but we’d need a sane leader who wasn’t using the NFL protests as a distraction from his own problematic administration.
(See, the First Amendment protects me saying that!)
Those who are offended by a player taking their knee during the National Anthem must remember that the very rights celebrated by the pledge and the anthem are the same rights that protect their action. And instead of snipping about who respects what more, maybe we should open a dialogue and talk about why players feel they need to take that action, and why so many of us are offended by their action, and why we can’t talk about the real issues and hide behind the silliness.
Maybe then we’ll remember the bedrock principle that Scalia explained, that just because speech may be offensive, doesn’t mean that it’s against the First Amendment. But, our reaction to the protest can be an great opportunity for understanding and making things better for us all.