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“Awesome Marines save American flag from protesters dishonoring it”

So reads a Daily Caller headline, referring to the incident depicted on this video:

I much prefer the view of Marine Major Brian Cillissen, as quoted by KRQE:

There are a lot of folks that have a lot of passion about that flag and want to protect it at all costs, but that doesn’t negate the fact that we’re in the service to support and defend the Constitution. If somebody is disrespecting that flag, legitimately it’s not any one person’s place to use intimidation or coercion to try and stop that.

As I blogged last month, it’s wrong for a professor to steal a sign depicting an aborted fetus. Likewise, it’s wrong for people — including people who are apparently military members — to chase down someone who is carrying a flag upside down, apparently trying to take it from him.

It’s true that many people view flying the flag upside down as offensive, and that many people find images of aborted fetuses offensive; but the offensiveness of public speech doesn’t justify trying to suppress it. And while apparently the scooter riders dropped the flag, rather than having it snatched away from them, it seems to me that they probably dropped it because they were understandably intimidated by the supposedly “awesome” people chasing them, and that the chasers were indeed attempting to take the flag from the riders, rather than just to run alongside the scooter engaging in an argument. (Note that Major Cillissen seems to have interpreted the chasers’ intentions the same way.)

Nor does it matter that, as some have pointed out, the federal flag code states that, “The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” The flag code is today seen as nonbinding, see 4 U.S.C. § 5 and Lapolla v. Dullaghan (N.Y. trial ct. 1970); moreover, the Supreme Court has held that similar binding restrictions violate the First Amendment. That was of course famously announced even as to flag burning in Texas v. Johnson (1989), but the Court held that flying the flag upside down was protected by the First Amendment in Spence v. Washington (1974):

We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby. “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” … Nor may appellant be punished for failing to show proper respect for our national emblem.

I should say that it is with some regret that I categorize the post under “Freedom of Speech Restricted by Thugs,” given my general respect for those who risk their lives to serve our country. But this is the category I used for the UCSB professor, and it seems to fit as well here; unless I’m misunderstanding the scooter-chasers’ intentions, they were indeed behaving in a thuggish fashion, whatever their other virtues might be.

(The incident arose last week, but I was on a family trip to Hawaii and blogging very little as a result.)

CORRECTIONS: I originally wrote, “And of course, even if there had been an enforceable law banning certain displays of the flag, that law should be enforced by the legally authorized enforcers, not by offended passersby,” but — prompted by a comment by Citizen Jeff — decided to remove it; New Mexico law does allow citizen’s arrests for felonies and for “breaches of the peace,” and it’s possible (though not certain) that, if the federal flag code were legally binding and constitutionally permissible, the illegal display of a flag would qualify as a “breach of the peace.” This does not affect the general point of my post, though, since the display of the flag upside down is indeed not prohibited by federal law, and in any case is constitutionally protected. I also, thanks to commenter Sigivald, added the language making clear that 4 U.S.C. § 5 and prior precedent itself suggests that the federal flag code is not legally binding, even apart from the First Amendment. Thanks to our commenters for the corrections!

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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Eugene Volokh · April 7, 2014

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