Dousing flag burning is a step toward drowning freedom of speech
Almost exactly 60 years ago, on Aug. 2, 1965, comedian and political activist Dick Gregory led protesters on a five-mile march from City Hall toward 3536 S. Lowe, the home of mayor Richard J. Daley.
They chanted "Ben Willis must go, snake Daley also" — Willis was the superintendent of the Chicago Public Schools, notorious for jamming Black students into "Willis wagons," classrooms held in trailers, a solution to overcrowding not found in white schools.
They were met by a mob of several hundred Bridgeport residents, who poured out of their homes, shouting racist slurs, hurling rocks and eggs. The police ordered the marchers to disperse and, when they didn't obey, arrested 65 peaceful marchers, charging them with disorderly conduct.
"If I had arrested the crowd, I would have had a riot on my hands," explained Capt. Howard Pierson, commander of the Deering police station.
The Illinois Supreme Court upheld their disorderly conduct convictions. But the U.S. Supreme Court overturned them, ruling, in Gregory v. City of Chicago, that our constitutional rights cannot be shouted down in what a University of Chicago law professor had called "a heckler's veto."
If our First Amendment rights were voided whenever someone else violently objected — or could be constrained by the spot decision of a cop on the beat — then none of us would have free speech.
The heckler's veto is back, as a loophole in an executive order, "Prosecuting Burning of the American Flag,” signed Monday by President Donald Trump. It acknowledges that the Supreme Court ruled in 1989 that flag burning is protected speech, then tries to skip around it this way:
"Burning this representation of America may incite violence and riot," the order notes. Perhaps that's only acceptable when mobs are being let loose on the Capitol.
Burning a flag is clearly free speech. Perhaps this is best illustrated by citing another legal passage: the United States Flag Code, adopted by the National Flag Conference in Washington DC in 1923, and amended by Congress.
Specifically Section 8, "Respect for the Flag." Line K: "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."
Not only is burning the flag permitted, it's preferred, as the most desirable, respectful way to dispose of old flags.
Underline respectful. It isn't the burning that's the problem. The FBI isn't going to burst into American Legion halls — the group collects old flags for disposal — and arrest vets in their watch caps.
What sham patriots can tolerate is the contempt, even as they fuel that contempt by their own un-American shenanigans. It's not the country being condemned — it's them.
And even that is a distraction. Going after flag burners is dipping a toe in the poison pool of revoking the First Amendment. The president conjured up an epidemic of flag burning which isn't really happening. What is happening is our constitutional freedoms are being eroded. Straight out of the totalitarian playbook, the most controversial expressions of those rights are first on the block. Won't go to bat for the flag burners? It'll be harder when protests against scrapping Social Security are deemed to be terrorism. Think it can't happen? The military is already being groomed for that purpose.
The order cites the sacrifices that soldiers made for the flag — though vets themselves leapt out of the blocks to oppose this order.
"I would never in a million years harm the American flag," conservative radio host and Marine veteran Jesse Kelly said. "But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage,"
Hours after the order was signed, Jim Carey, a disabled 20-year combat vet, set a flag on fire in Lafayette Square, across from the White House.
“It was my right as a citizen … under the First Amendment to protest in whatever way I see fit without hurting anybody,” said Carey, who was arrested, and charged with setting a fire in a public park.
“That I had fought for this flag, my friends died for this flag, and that he does not have the right, and he’s not allowed to make these illegal rules and laws just because he’s the president,” Carey told the Washington Post.
Myself, I could never burn a flag — I'd rather protest the order in the best way I know how, by explaining its plain anti-Americanism here, and by putting out my flag, symbol of a nation so confident that it tolerates even the most extreme dissent. That's true strength. And real greatness.