It has been long established that flag burning is an activity protected under the First Amendment. The burning of this symbol strikes many as unpatriotic, seditious, insulting and decidedly illegitimate protest. The beauty of the First Amendment, however, lies in its ability to elevate controversial forms of protest and defend them against silencing. It reinforces the symbolic nature of artifacts and draws a very distinct line between symbol and actuality. Burning an American flag to protest American policies, actions and ideals, while unpopular, is protected speech and is infinitely preferable to setting fire to more tangible representations of the state (e.g. a courthouse, police station or government office). Those who would criminalize flag burning make the false equivalency that the flag and the courthouse are of equal status, that the flag is somehow imbued with power afforded to it by the Constitution and that an attack on it is tantamount to an attack on the State.

A flag that symbolizes the State is not and cannot be an actual extension of that State. The Pledge of Allegiance (a topic well worth a separate analysis) says “… And to the republic, for which it stands [emphasis added]”, demonstrating that the flag is and always will be a symbol. It is dyed synthetic fabric with no intrinsic meaning or value. It is not a structure, an individual or physical property of the State (assuming the flag is personal property and not public property). Anyone, especially anyone poised to take on a powerful leadership position, who denounces as traitors those who would exercise this particular method of protest should absolutely be prohibited from appointing the judges who will determine how our children will be allowed to protest. Anyone so openly hostile to valid protest should not be allowed to occupy the position of the Commander-in-Chief.