A Burningissue Offreedom; e_SDLqIf There Is Any Fixed Star in Our Constitutional Constellation, It Is That No Official, High or Petty, Can Prescribe What Shall Be Orthodox in Politics, Nationalism, Religion or Other Matters of Opinion." [Derived Headline]

By Napolitano, Andrew | Tribune-Review/Pittsburgh Tribune-Review, December 10, 2016 | Go to article overview

A Burningissue Offreedom; e_SDLqIf There Is Any Fixed Star in Our Constitutional Constellation, It Is That No Official, High or Petty, Can Prescribe What Shall Be Orthodox in Politics, Nationalism, Religion or Other Matters of Opinion." [Derived Headline]


Napolitano, Andrew, Tribune-Review/Pittsburgh Tribune-Review


e_SDLqIf there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion."

-- U.S. Supreme Court Justice Robert H. Jackson

Is flag burning protected speech? This old issue returned front and center after President-elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment -- loss of citizenship or one year in jail.

Last month, in a series of continued emotional responses to Trump's election, students on a few American college campuses publicly burned American flags. These acts regenerated the debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.

For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.

Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the high court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations -- the same statutes permitted other public fires -- but rather as prophylactics intended to coerce reverence for the flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags. …

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A Burningissue Offreedom; e_SDLqIf There Is Any Fixed Star in Our Constitutional Constellation, It Is That No Official, High or Petty, Can Prescribe What Shall Be Orthodox in Politics, Nationalism, Religion or Other Matters of Opinion." [Derived Headline]
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