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?”
During the 2016 presidential campaign, then-candidate Donald Trump 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 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. Now President Trump has endorsed a constitutional amendment being introduced by Republican Sens. Steve Daines and Kevin Cramer that would make an exception to the First Amendment for flag burning, allowing Congress to make flag burning a federal crime. It should be noted that the late Antonin Scalia, who the president has said is the model for his judicial appointments, was in full agreement with the Supreme Court’s position on this issue.
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 many find particularly distasteful and disrespectful. But the question that should be asked is not whether the act is distasteful or even unpatriotic but rather, “who owns the flag?” The question of whether people should have the right to burn the flag is not a complicated one. 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’s 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 one from someone else’s flag pole. You do not have the right to burn a flag that might be flying in a town square or in front of a VFW Hall. 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 buying 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.
To coercively prevent people from using their own property in a way that expresses their beliefs is inconsistent with the fundamental principles of individual liberty and free markets that this country is based on. Simply put, property rights and the right to free speech are inseparable.
Dr. Roy Cordato, former resident scholar at the John Locke Foundation, is editor of Political Economy in the Carolinas.