Burning our Freedom of Speech in action

In light of all the uproar last week over Trump's questioning of whether burning the flag should perhaps be protected as 'freedom of speech', or not, I'll exercise my freedom of speech by questioning some common assumptions about what freedom of speech is, and isn't.

To get the easy part out of the way, here's Trump's tweet that started the latest round of 'discussion':

"Donald J. Trump ✔ @realDonaldTrump Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!"

, now, even allowing for his 'perhaps', the notion of losing your citizenship over burning the American Flag, or being imprisoned for a year, is, IMHO, silly, and further sensationalizes a subject that is already too saturated with it. But, that being said, what we associate with the 'flag burning issue' is something that needs a lot more consideration than the two existing poles of 'Burn it!' and 'Revere it!', tend to permit, especially since the burning of the flag is the least important aspect of it, and more often than not, it is a distraction from what the real issue is: our Freedom of Speech... and the rest of the 1st Amendment.

As much as I disrespect those who disrespect our flag, it's not the burning of the flag that I have an issue with, from a legal standpoint at any rate. What I do have an issue with, is what has become one of those default 'givens' that we hear and have heard over and over, from all sides, for so long, and so often, that we no longer get around to seriously questioning it, and that 'given' is the idea that the action of destroying property in as inflammatory a means as possible, can be considered 'speech' - let alone constitutionally protected speech. For decades I've heard that position being asserted (from the Left, and now even from the Right), and while I've heard objections to it being ridiculed, I've rarely heard the assertion really being questioned, and it seems like maybe it's about time to begin doing just that.

Here's the text of the 1st Amdt:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Simply reading the text of it isn't enough though, you need some understanding of what the idea is, and why it was considered important to prevent the Govt from infringing upon it, before you go attributing your own preferred meaning to it. If it's been a few years since you've done anything of the sort, here are a few links worth reading, beginning with the ideas and debates that went into writing it, up to the case most often referred to in flag burning discussions, Texas v. Johnson:

• This links to the text of the 1st Amdt as well as a number of links to arguments, debates, cases, comments, speeches (especially Montesquieu's, John Marshall's , relating to the original debates over the Freedom of Speech (Madison introducing his draft to congress) and James Kent's commentaries, the right to peaceably assemble and to address your grievances to your government(related links), as well as regards Religion, that went into writing the 1st Amdt, and its implementation
• , and from the last of those, which is especially worth reading (all the way through) Justice Joseph Story's comments on what it was that the 1st Amendment secured the freedom of,,
• , and finally the text of the Texas v. Johnson case, and key cases it references and builds upon,

  • U.S. v. O'Brien,
  • W.V. State Board of Education v. Barnette,
  • Boos v. Barry
  • and Stromberg v.CA

In reading these cases and comments, and thinking about what is meant by 'Freedom of Speech', it seems to me that most of the judgments attributing the actual burning of flags (or draft cards, etc) to being a form of speech protected under 'freedom of speech', or to 'symbolic speech', are not only inappropriate, but they cheapen, degrade, and dangerously blur that concept of speech which the framers of the amendment were seeking to preserve and defend. The treatment of the action of burning objects as that were equivalent to speech, waters down and weakens our understanding of what Freedom of Speech is and was meant to be, which I think jeopardizes our hold on this fundamental right far more than even an authoritarian government ever could.

Examples of just that are easy to find in our recent news headlines, with masses of people