Freedom of Speech in America
Joselyn Figueroa Cosme, Fall 2022
Is the right to free speech an all-encompassing law, or are there certain exemptions? In the United States, the issue of free speech has been tackled in a variety of ways. One of the more nuanced areas of freedom of speech is flag burning. The First Amendment of the United States gives us the right to freedom of speech, and although there are certain exemptions, the act of flag burning can be an appropriate form of speech. Exercising the right to freedom of speech through acts like flag-burning should be considered an appropriate way to express your opinion. However, the act of flag burning is often seen as a morally unacceptable method of self-expression and has caused quite a bit of controversy. Furthermore, during the landmark Supreme Court decision in 1989, the Supreme Court of the United States voted 5–4 to defend the burning of the American flag under the right of free speech given by the First Amendment. “The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment.”[1]. The Supreme Court wholly understood and supported that freedom of speech protects acts of self-expression even if some people may find it offensive; essentially outrage is not sufficient justification for reducing the right of self-expression. Burning a flag is an appropriate form of self-expression, and the right to free speech should be secured in every way.
Being a citizen of the United States comes with certain rights and privileges, one of which is the freedom of speech. Simply voicing our opinions is protected under free speech, and although there may be a wide range of consequences that come with self-expression, free speech is a right worth protecting. A good way of understanding the importance of this right is through British philosopher John Stuart Mill’s perspective which identifies that the truth is unknown so any form of censoring is potentially reducing the truth, free competition is an excellent way to identify the truth, and the importance of a range of ideas to find truth and preserve it. Mill believes that “the only check against our fallibility is to promote the free expression of ideas” [2].” In short, the only way we can have confidence in our opinions and judgments is by testing them in the fire of free expression. Therefore, the process of censorship isn’t a possible reality and also leads to the undermining of one of the main methods we have to reach objective truth. People’s beliefs should be respected, but governments must act, and all of this talk only serves to undermine the government’s decisive actions, which may harm citizens.
Mill further explores how the government’s function is more efficiently performed when the interests of the public are the source of guidance. In the case of flag-burning, the Supreme Court recognized it as a form of speech that is protected by the First Amendment. If a flag is privately owned, the owner should be able to burn it if he or she so desires, especially if the action is intended to be proactive. Furthermore, the Texas v. Johnson legal case in 1989, dealt with a Texan being charged and sentenced by the state government for burning a flag for violating a state law prohibiting the desecration of the flag. However, on the federal level, flag burning is a protected form of free speech, which is why it was no surprise that the case unfolded with the Supreme Court invalidating prohibitions on desecrating the American flag. In short, the consensus from the Supreme Court supports self-expression even if it’s disagreeable or controversial.
Furthermore, if we follow the theory presented by Mill, we find that three problems come with restricting free speech. First, there is the position that when an opinion is widely accepted, the majority position is correct while the minority position is incorrect. Essentially, if the majority opposes the minority’s viewpoint, then it means that society does not accept the truth. Next, is the potential loss of truth in suppression, “silencing the expression of an opinion is that it is robbing the human race…those who dissent from the opinion, still more than those who hold If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose…[3]”. The pursuit of the truth about a matter is an overwhelming process, and as a result, no opinions should be silenced. Finally, the utility of self-expression should be defended in every case because the truth is best protected by allowing minority opinions to be freely expressed.
The measure of harm is determined in the context of free expression because its role is to limit the sphere of intervention by the governmental authority against activities or expressions that harm others. The burning of a flag can be a responsible way of self-expression.“ Like angry flag-burning, is one of the modes of expression, and expression is said to be protected by the First Amendment. As the Court explained, the First Amendment protects angry political expression but not pointless political expression: for example, flag-burning just for the fun of it[4].” People should not feel obligated to burn flags when they are angry about something.” However, when circumstances necessitate publicly airing one’s displeasure with the government, flag burning is an appropriate form of self-expression. Although the flag signifies bravery and freedom for many, for others it may hold different negative ideas, which they have every right to disagree with and speak out against. This is supported by the US Congress, which “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or the press…[5]” The government has no right to intervene in people’s right to self-expression since they are not breaking any laws. Furthermore, “The solution to preserving the flag’s particular purpose is not to punish individuals who feel differently about these topics” [6]. Following Mill’s framework, it’s easy to see why we should and have been granted the right to be able to express our opinions, from statements of discontent to actions of symbolic speech such as the flag-burning mentioned earlier.
Freedom of speech can be defined in various ways in the United States. We can exercise freedom of speech “In indirect (words) or a symbolic (actions) way” [7]. Different actions can be used to define freedom of speech in the U.S., such as verbal sayings, flag burnings, and art protests. The protection of this right is illustrated in “June 21, 1989, that the burning of the U.S. flag is a protected form of speech under the First Amendment to the U.S. Constitution” [8]. Furthermore, this case also demonstrates the difficulty in determining the limits of harm. The challenge lies in determining whether or not an action causes harm to others. Despite this decision by the United States Supreme Court, the burning of an American flag remained a contentious issue. “The right to freedom of speech allows individuals to express themselves without government interference or regulation.” There will always be consequences to more extreme forms of political demonstrations. However, instead of taking offense at the burning of a flag, we as a country should come together to understand the reasons behind these actions and how we can make the country more equitable and satisfactory for our citizens.
All in all, the freedom of self-expression should know no bounds. How you feel about matters shouldn’t be restricted by law unless it is directly harming your surroundings. When people realize they have harmed themselves or others, violence and free speech may emerge, encouraging people to burn flags and express their wrath as a responsible method to oppose the government without being penalized. To have a nuanced understanding of the topic of flag burning being protected under free speech, the analysis conducted by the organization uscourt.gov explores many differing arguments. For example, the article explores whether the government should make flag burning an exception to the first amendment, as well as the proposition that the government should tackle the matter of the legality of flag burning on a case-by-case basis. Further reading of sources like these is required to get a whole understanding of the matter of flag burning, but what can be said for certain is that flag burning, regardless of its controversies, does have a time and place as a form of communication.
Notes
[1]Facts and Case Summary – Texas v. Johnson | United States Courts. (n.d.). United States Courts |. Retrieved May 10, 2022, from https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson
[2]Danaher, J. (2018, November 14). Mill’s Argument for Free Speech: A Guide. Philosophical Disquisitions. Retrieved May 10, 2022, from https://philosophicaldisquisitions.blogspot.com/2018/11/mills-argument-for-free-speech-guide.html
[3]Texas v. Johnson. (n.d.). Wikipedia. Retrieved May 10, 2022, from https://en.wikipedia.org/wiki/Texas_v._Johnson
[4]Flag burning and other modes of expression | AEI. (n.d.). American Enterprise Institute. Retrieved May 10, 2022, from https://www.aei.org/articles/flag-burning-and-other-modes-of-expression/
On Liberty – John Stuart Mill. (n.d.). Faculty of Social Sciences. Retrieved May 10, 2022, from https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf
[5]Freedom of Speech, What it is and What it isn’t. (2021, August 16). Law for Seniors. Retrieved May 10, 2022, from https://www.lawforseniors.org/how-government-works/282-freedom-of-speech-what-it-is-and-what-it-isn-t
[6]Reasons to Oppose the Flag Desecration Amendment. (n.d.). American Civil Liberties Union. Retrieved May 10, 2022, from https://www.aclu.org/other/reasons-oppose-flag-desecration-amendment
[7] “First Amendment.” LII / Legal Information Institute (n.d) Retrieved May 10, 2022, from www.law.cornell.edu/wex/first_amendment.
[8] Smentkowski, B. P. (2022, May 3). Texas v. Johnson | Summary, Background, & Significance. Encyclopedia Britannica. Retrieved May 10, 2022, from https://www.britannica.com/event/Texas-v-Johnson
Further Reading
Why is free speech important? – Index on Censorship Index on Censorship. (2016, April 13). Index on Censorship. Retrieved May 10, 2022, from https://www.indexoncensorship.org/2016/04/free-speech-important/
Manning, C. E. (2015, May 6). We’re citizens, not subjects. We have the right to criticize government without fear | Chelsea E Manning. The Guardian. Retrieved May 10, 2022, from https://www.theguardian.com/commentisfree/2015/may/06/were-citizens-not-subjects-we-have-the-right-to-criticize-government-without-fear