Flagburning:

Clayton Cramer e-mailed me this about the manure-spreading incident:

[I]f burning an American flag is protected freedom of expression, perhaps spreading manure [as a political protest] is too.

He was of course using it to suggest that flagburning shouldn’t be protected, not that manure spreading should be.

I’ve never bought some conservatives’ harping on the supposed ridiculousness of the Supreme Court’s flagburning decision. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court’s first decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn’t literally “speech” or “press”?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. (It may not be oral speech, but unless one thinks that the government should have a broad right to suppress handwritten letters, because they are neither oral speech nor “press,” one has to read speech more broadly than just oral speech.) Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it’s not very valuable speech, or that there’s a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag. A law that bans the burning of all objects in certain public places — perhaps on the grounds that they are fire hazards — would be constitutional. [*] Likewise with a law that bans the placement of manure in the middle of a street.

So there’s really not much tension here between the protection given flagburning and the lack of protection given manure spreading. An evenhanded ban on burning things in a place and an evenhanded ban on spreading manure there would be constitutional. Likewise, a ban on burning the American flag and a ban on spreading manure as a protest against gay pride parades would both be unconstitutional.

[*] NOTE: Under the United States v. O’Brien test, symbolic speech might be entitled to an exemption even from a generally applicable law — a law that doesn’t single out expression — when the symbolic speech is highly unlikely to cause the harm that the law drives at.

This, though, is a very narrow doctrine, under which exemption claimants almost never win. And there are plausible arguments that the doctrine should generally be rejected, at least as to behavior that isn’t traditionally expressive. Justice Scalia has been the chief advocate of such arguments, but note that even he recognized in the flagburning cases that a law that punishes expressive conduct precisely because it’s expressive presumptively violates the First Amendment.