John Locke Update / Research Brief

Flag Burning: A Matter of Property Rights

posted on in Economics & Environment
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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?” (emphasis in original)


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 U.S. 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 Supreme 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, albeit one that, while peaceful, many find particularly distasteful and disrespectful. But the questions that should be asked is not whether the act is distasteful or even unpatriotic when discussing whether someone has a right to burn an American flag. Rather, “who owns the flag?” As I noted 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, it is ownership of the flag, i.e. property rights, that gives its owner the right to use it as a means of expressing disagreement. Because any kind of expression involves the use of property, restrictions on free expression will necessarily involve restrictions on property rights. Ultimately free speech rights are property rights.

Of course, as with all legitimate property rights, there is an obligation that goes along with it. The property rights of others must be respected. 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, such as 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 does 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 other law 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 whatever bathroom they choose, or laws that prevent them from doing so.

To coercively prevent people from using their own property in a way that expresses their beliefs is inconsistent with the fundamental principles of liberty that this country is  based on. Simply put, property rights and the right to free speech expression are inseparable.

Roy Cordato is Senior Economist and Resident Scholar at the John Locke Foundation. From January 2001 to March 2017, he held the position of Vice President for Research at the Locke Foundation. He also holds the title of Lecturer at… ...

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