Some responses to my post about the flag desecration prosecution prompt me to repost (with some edits) something I wrote about in July 2004.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. Sure, flagburning isn't literally opening your mouth or talking (one meaning of "speech") or using a machine to print letters on paper ("press"). But neither is handwriting a letter; neither is waving a non-printed sign.

Most relevant here, neither is waving a flag. 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 three 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. 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; such restrictions necessarily focus on the message that the flagburning (or the attachment of words to a flag, or flying the flag upside down) sends -- they'd be senseless if they weren't focused on the message. 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. But a ban on the burning just of the American flag, or even of flags generally, would be an attempt to suppress communication, just as a ban on handwritten picket signs, or a ban on public speeches that are derogatory towards America (or for that matter on speeches that are derogatory towards any nation).