OPINION: Flag desecration is free speech whether you like it or not

By Scott St. Clair | The Save Jersey Blog

The recent arrest and forcible handcuffing of an air force veteran who grabbed an American flag after it had been trampled on during a protest in Valdosta, GA. has a lot of people up in arms. She had a right to do it because she was defending the flag and what it stands for, they claim. The problem is both she and they are wrong since what she did runs counter to what the flag, and the Constitution, stand for.

The veteran, 38-year-old Michelle Manhart, is also a former Playboy model whose military career was cut short after she posed nude in the magazine. Apparently, the military takes a dim view of uniformed – or in her case, ununiformed – personnel going full commando for public consumption, which itself raises serious constitutional issues. But that’s a discussion for another day.

As the video shows, Ms. Manhart took extreme objection to a demonstration by the New Black Panther Party and other radical black organizations when they flew their “Pan-African flag” as they put an American flag that belonged to them on the ground and walked on it:

Obviously, she was bitterly offended, as were other onlookers.

By all rights, Save Jerseyans, you would be too, as am I.

The problem is that taking offense doesn’t give her, you or me the authority to negate the First Amendment free-expression rights of even the New Black Panther Party. Nobody has that right, even when our most sacred national or religious symbols are insulted or abused because free speech includes offensive, disrespectful and ugly rhetoric and expression through and including desecrating the American flag.

In the video, Ms. Manhart is heard to say, while clutching with both hands the trampled upon flag and refusing to give it over to the police, that the flag belongs to everyone. In one sense she is correct: as a symbol, the flag is every American’s heritage. But she’s also wrong in that the particular flag in question was the personal property of someone in one of the protest groups, and respectfully or not, he or she had every right to do with it as he or she saw fit.

But shouldn’t there be an exception for the flag – shouldn’t its symbolic grandeur be immune from harm? Congress thought so a couple of times when it passed anti-desecration legislation, but the Supreme Court struck the laws down 25 years ago in flag-burning decisions – here and here – where the traditional ideological alignments didn’t hold.

The Court’s most conservative and most articulate justice, Antonin Scalia, sided with the majority in both cases even though he regarded the burning of the flag and the fellow who did it with extreme disgust.

“I would send that guy (the flag burner) to jail so fast if I were king,” he was quoted as saying during a symposium at Brooklyn Law School a year ago. While he regarded the flag burner as a “bearded weirdo,” even bearded weirdoes have constitutional rights that supersede anyone’s, even a Supreme Court justice’s, personal moral code.

“You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag,” said Justice Scalia on another occasion.

Of course, not everyone saw the Valdosta incident this way, as these tweets indicate:

I applaud you, ma’am! ‘Air Force vet detained for taking US flag being walked on by protesters’ http://t.co/qqKTTG2Rvi #MichelleManhart

— David Quesada (@DQuesada) April 19, 2015

@valdostastate students who mistreated US Flag you r embarrassment to all educated citizens. Should be arrested & deport. #MichelleManhart

— Dawn Clark (@dawnsair) April 18, 2015

Pardon me for suggesting that some folks have a serious misunderstanding of both the law and the principles behind it.

Maybe they would like to amend the Constitution to make flag desecration a criminal offense? Congress considered such a measure in 2006 after the two Supreme Court cases, but it never got out of the Senate.

These days, a lot of people want to “clean up” the Bill of Rights to make it more palatable to their political orientation. Whether it’s exempting certain political campaign contributions from First Amendment protection – overturning the Citizens United case – or repealing the Second Amendment, their answer is less freedom, less liberty, fewer individual rights in the name of some greater public good or to assuage some higher moral or patriotic sensibility.

Do we really want to amend the First Amendment to the point where it says, “Congress shall make no law… abridging the freedom of speech EXCEPT in the case of flag burning and campaign contributions …” If we start picking it apart piecemeal, how soon before there’s nothing left?

What’s wrong with leaving at “Congress shall make NO LAW…” and letting the chips, and the free speech, fall where they may?

You can rant, rave, shout, scream, write, preach, editorialize or protest all you like against flag desecration or whatever.

You can call the Valdosta protesters 18 shades of scalawag and anti-American poltroon.

You can take your own personal copy of their Pan-African flag and trample it to shreds if you’ve a mind to.

But you can’t deny to even the New Black Panther Party the right to do the same thing because that goes against the very freedom and liberty the American flag symbolizes and the Constitution protects.

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