Not long ago I had a little rhubarb on Twitter with my old e-pal Kevin Kim on the subject of flag-burning. Kevin had quoted George Carlin’s remark that he preferred to leave symbols to the “symbol-minded”.
The meaning of Mr. Carlin’s remark, and of Kevin’s quoting it, is clear enough: that the flag is just a piece of cloth, a mere symbol, and to care overmuch about how people treat the flag is to, in Kevin’s words, “fetishize” it.
I thought that this was a surprisingly superficial way of looking at the matter, and needled Kevin by tweeting that I was starting to think he didn’t understand how symbols work. Kevin took this as an unforgivable insult, and so we are, apparently, no longer friends. That’s a shame, and seems awfully petulant for a man of his age, but there’s nothing more I can say about it.
There is, however, more I can say on the subject of flag-burning. The topic’s been in the air lately. Donald Trump’s been tweeting about enforcing “consequences” for it, and the New York Times responded with a prim article (perhaps “snotty” would be a better adjective) chiding him for his ignorance of the Constitution. (The Times is completely unable to conceal its contempt for, and visceral loathing of, Mr. Trump, but of course that shouldn’t surprise anyone; it is of a piece with the general superiority their social class feels toward the traditional American nation and those who would empower it, and it is why they lost this election. Nor should the Times be surprised to see itself increasingly marginalized, and even reviled, as the tectonic plates upon which they have built their Cathedral continue to shake and shift.)
If you skim off the bile from the Times’s editorial, the residuum of actual content is two sentences long:
Flag-burning is constitutionally protected speech. The Supreme Court has made this clear, in a ruling joined by Mr. Trump’s favorite justice, Antonin Scalia.
Well, OK, then. The Court having ruled, the question is, in purely legal terms, settled. (The case was Texas v. Johnson.)
One may still ask, though, whether the Court’s ruling was the right one, which is what Bill Vallicella did just the other day. He argues that the opinion should have gone the other way, on the grounds that flag-burning is too lacking in specific propositional content to qualify as “speech”.
[T]he editorial board of The New York Times betrays a failure to grasp the distinction between the U. S. Constitution and Supreme Court rulings about it. In the 1989 case “Texas v. Johnson,” SCOTUS handed down a 5-4 ruling according to which flag burning was a form of speech protected by the First Amendment. Now if you read the amendment you will find no reference to flag burning. The subsumption of flag burning under protected speech required interpretation and argument and a vote among the justices. The 5-4 vote could easily have gone the other way, and arguably should have.
So Trump’s tweet, “Nobody should be allowed to burn the American flag . . . ,” does not show a lack of understanding of the Constitution. After all, SCOTUS rulings can be overturned. On a charitable interpretation, Trump was advocating an overturning of the 1989 and 1990 flag burning rulings.
Ought flag burning come under the rubric of protected speech? Logically prior question: Is it speech at all? What if I make some such rude gesture in your face as ‘giving you the finger.’ Is that speech? If it is, I would like to know what proposition it expresses. ‘Fuck you!’ does not express a proposition. Likewise for the corresponding gesture with the middle finger. And if some punk burns a flag, I would like to know what proposition the punk is expressing.
The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level. To have reasoned or even unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are. I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.
Even if you disagree with Bill’s argument here — that flag-burning is not “speech” — there’s another angle of attack on the Court’s ruling that I think is worth mentioning, one that comes back to the nature of symbols, and to what flag-burning, properly understood, really means.
In Buddhism there’s a notion of “the finger pointing at the Moon”. It refers to an intellectual or epistemic trap, in which one mistakenly identifies a “pointer” — a word, a sign, a symbol, or even a charismatic teacher — for the thing pointed to. It is a defect in the normal function of symbols in human culture, which is to act as proxies for their referents. They can also be tremendously powerful proxies in that they “compress” an enormous amount of information about the thing they point to. All the power of an entire culture’s history and folklore, its mores and traditions, and its ancient claims upon its people’s love and honor, can be condensed and focused through a universally recognizable symbol. But the symbol itself is still, in a sense, transparent, like a lens.
When two people recognize such a symbol for what it is, and engage in a social transaction using the symbol as shorthand, the symbol itself — the word, or insignia, or flag, or song, or whatever it might be — being common on both sides of the equation, cancels out. And both sides understand this, quite naturally. It is what we humans do. So to dismiss flag-burning as nothing more than arson committed against a piece of cloth — as if it were equivalent to burning one of your socks — is either willfully disingenuous, or profoundly ignorant. But to dismiss it as silly “symbol-mindedness”, as George Carlin did with a lofty tone of superior detachment, is not a whole lot better, as it still misses (or sneers at) the real function of symbols in human societies, and in normal human minds.
Symbols are so universal, and their function and power so well-understood, that they can even be created on the fly. Walk up to some hulking biker in a park, mark off a little patch of ground, and say “this is your mother’s grave.” Then spit on it. Will he laugh and say “That’s silly, my mother is buried in Staten Island”? No — you will probably have a fight on your hands, and you will deserve it.
If even an ad hoc symbol can focus so much power, then clearly a venerable symbol like the American flag is a very powerful lens indeed — and when someone burns it, they know very well what they are doing, as do those who see them do it. To do so says, and says very clearly: “We both know that this flag is a proxy for what you hold most sacred, for what you feel honor-bound to defend, and for what your fathers died for. I am going to stand here before you and spit on all of it. What are you going to do about it?”
This is the propositional content that Bill was looking for. Flag-burning is not about the flag. It is not about the finger, it is about the moon. And because its propositional content is in fact quite clear, I think it is not wrong to regard it as a kind of speech.
But does that mean it is protected speech, under the First Amendment? My answer, which agrees with Bill’s but for different reasons, is no. Why? Because, given everything above, the burning of a flag is correctly understood as a deliberate and calculated provocation, a non-verbal act that still carries a very definite propositional content: an intentional defilement of that which the intended target holds sacred — not the flag (the finger), but the nation, history, traditions, folkways it symbolizes, and the honor and sacrifice of those who gave their lives to build and defend it (the moon). Both parties in this transaction understand this very well indeed: those who burn the flag do so precisely because they intend to taunt, defy, and enrage patriotic Americans who watch them do it.
So what kind of “speech”, then, is flag-burning? A very particular kind, I think, that the Supreme Court defined in Chaplinsky v. New Hampshire, in 1942: “fighting words”. And fighting words, by that ruling, are not protected speech under the First Amendment.
In the unanimous opinion, Justice Frank Murphy wrote:
It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight 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.
Now I realize that in the majority opinion in Texas v. Johnson, William Brennan wrote:
Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” … No 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.
Well, I’m a reasonable person, and for the reasons given above, I disagree — as would, I think, many millions of Americans. Is flag-burning an “essential part of any exposition of ideas”? When some Occupy slacker defecates on Old Glory, is that an essential “step to truth”? Of course not. Given the unique potency of this symbol, its deliberate desecration is distilled provocation — and if you want to make the case that the license to make this incendiary gesture is “outweighed by the social interest in order and morality”, you have my blessing.