To agree with others is not a problem in any society; it is the right to disagree that is crucial. It is the institution of private property that protects and implements the right to disagree.—Ayn Rand, “What is Capitalism?”
Earlier this week President-elect Trump renewed what most had thought was a settled debate when he tweeted that he believed people who burned the American flag should be punished with either loss of citizenship or a year in prison. This is in spite of the fact that the Supreme Court has ruled on more than one occasion that flag burning is a form of free speech protected under the US Constitution. It should be noted that the late Antonin Scalia, the judge who the President elect has said over and over again, would be the model for his judicial appointments, was in full agreement with the Court’s position.
While I agree with Scalia that flag burning should be protected under the First Amendment, the more fundamental issue is not one of free speech rights but property rights. Put in terms of the above quote from Ayn Rand, flag burning is an expression of disagreement, al-be-it one that, while peaceful, many find particularly distasteful and disrespectful. The question that should be asked when discussing whether someone has a right to burn an American flag or not is “Who owns the flag?” As I said in a recent Twitter post, flag burning is not a complicated issue. If the flag is yours you have a right to burn it, if it’s not you don’t.
To relate this issue to the quote from Ayn Rand, ownership of the flag is what gives its owner the right to use it as a means of expressing disagreement. It also means that if you want to burn a flag for any reason you do not have the right to pull down a flag from someone else’s flag poll, one that might be flying in a town square or on the middle of a college campus, and set fire to it. This would be trespass and theft and you should be prosecuted accordingly. The point is that you must legitimately acquire the property rights to the flag, i.e. go out and spend your own money on purchasing it, before you take a match to it. It also doesn’t mean that you would have a right to violate any other ordinances in the process of burning the flag, even if it is yours. For example, the right to burn your flag would not give you the right to violate laws against setting fires in public places–parks, sidewalks, etc.–disturbing the peace, or creating a public nuisance. If in the process of burning your flag you violate any of these kinds of laws you should be subject to the usual enforcement mechanisms and penalties.
As people who love liberty and free markets we should oppose laws against flag burning for the same reason we oppose laws that force the Little Sisters of the Poor to provide free contraception to their employees, or laws that force Christian or Muslim bakers to make a cake for a gay couple’s wedding, or laws that force private business owners to allow transgendered people to use the bathroom of their choice, or laws that prevent them from doing so. To punish people for using their own property in a way that is consistent with their beliefs is inconsistent with fundamental principles of liberty which are meaningless without private property. It is not the actions taken in using one’s property in these ways that are inconsistent with American values but coercive actions taken by government to stop them.
