In
a new essay at Postliberal Order, I argue that
burning the flag as an expression of contempt for one’s country is contrary to
the virtue of piety, is something we therefore have no right to do under
natural law, and may, in principle, therefore be outlawed by the state. I also argue that the Supreme Court was, in
Texas v. Johnson, mistaken in claiming
that a right to burn the flag is implied by the U.S. constitution.
I much more concerned about this great country turning into a dictatorship than I am about flag burning. Didn't you X about flag burning a while back?
ReplyDeleteYou can’t expect people to only write about your greatest concerns.
DeleteRight. While the country accelerates into a dictatorship, the bravery of many modern Christians consists, not in opposition, but in how they can support it. Unreal. As to the subject at hand, there is nothing wrong with expressing contempt for the state of your country, any country. If the country is not piteous and actively supporting or primarily supporting evil, I don’t see what gratitude you must have for it ( why would my gratitude not be to Nature or God -for existing- not the temporal location I happen to be in?). You must condemn wrong doing and one way is this act of political expression. Trying to make flag burning bad for all time, while, in some ways, an all too Christian move, creates an eternal ‘country’ where there is none. No one should be expected to defer eternally to state of evil.
DeleteEd expressed his concern. I expressed mine.
DeleteImagine thinking the erosion of democracy in this country is just some "personal concern." I think one can reasonably argue that focusing on flag burning--the destruction of the symbol of the country--to the exclusion of the destruction of the country itself--is a misplaced priority.
DeleteThe destruction of democracy in the country is hardly some "personal interest." And one could reasonable argue that focusing on the destruction of the flag--a symbol of the country--over the destruction of the country's principles--the thing the flag represents--profoundly confuses moral priorities.
DeleteFlag burning is a non-issue. The Supreme Court has said it is legal. Trump's Executive Order is meaningless. The erosion of democracy should be everyone's concern. Did anyone listen to Trump's rambling and bizarre speech before all our generals and admirals at Quantico?
Deletehttps://foreignpolicy.com/2025/10/01/trump-military-generals-incitement-civilians/
https://www.bbc.com/news/articles/cvgq044n72po
Anonymous @ 9/30, 8:03 am
DeleteIt seems Pope Leo found Trump's remarks to our military leaders "concerning. "
The "erosion of democracy" is not really a good or bad thing... it's not even really a "thing" because "the people" cannot be sovereign, by nature. What is called "democracy" exists principally because parties want to expand their power. Prior to the expansion of suffrage, the vast majority of eligible voters did not even participate in presidential elections. Both mainstream parties rig the game in their favor in their own ways (Dems through mass migration and expansion of suffrage and Reps through gerrymandering and voter ID laws) not because we live in some strange time where nobody respects the rule of law. It's because this is what democracy is and what it's always been and how it's always worked. It's just oligarchy that masks and maintains its power through the illusion of popular sovereignty.
Delete"Defenders of flag burning lump it in with criticism of political leaders or of government policy, but it is not at all like that. The flag does not represent this or that leader, party, or policy, nor does it represent even any particular form of government."
ReplyDeleteThis is where the argument fails, for me (or one place, anyway). People may disagree about what the flag represents. The flag burner himself may agree with the "defender" here, and be burning the flag not out of impiety, but out of anger at a particular administration. And then what you have is a difference of opinion as to the meaning of his act, and of a symbol. The question could thus be whether such a disagreement should be a crime.
The error reappears in the closing paragraph on Constitutional analysis.
"All the same, since we are by nature rational social animals, the right to free speech cannot be so broad that it would allow for speech that is positively destructive of reason itself or of the very social order."
It is quite clear that such a sweeping exception could and would be used to justify virtually any exception that a regime wished to impose. There is a reason why a more absolustist vision of free speech emerged after centuries of government (including, though not limited to Catholic government) oppression of opposing speech.
"There is a reason why a more absolustist vision of free speech emerged after centuries of government (including, though not limited to Catholic government) oppression of opposing speech."
DeleteCareful. The fact that human society actually changes (and sometimes does so for good reasons) might call into question the idea that Thomas's pronouncements about political life written in 13th-century Italy apply in a simple copy-paste fashion to all times and places.
SMack,
DeletePeople may disagree about what the flag represents.
But if there were a law banning flag burning, then it would be a social convention about what that represents. No one seriously claims he is expressing free speech while speeding past an octagonal sign with the letters STOP because he sees the symbol as something different than what society agrees it says. One could still express disagreement about particular policies etc, just in a different way.
It is quite clear that such a sweeping exception could and would be used to justify virtually any exception that a regime wished to impose.
If it is true that speech can be destructive of reason itself or the social order itself, then there would be no regime since that implies a social order. Right?
@bmiller
DeleteSo, you admit that the meaning of a flag (and therefore the meaning of burning a flag) is varied and debatable, and propose to solve this issue by imposing your preferred meaning by legal fiat. I hope I don't have to explain how ridiculous you sound.
People may disagree about what the flag represents. The flag burner himself may agree with the "defender" here, and be burning the flag not out of impiety, but out of anger at a particular administration. And then what you have is a difference of opinion as to the meaning of his act, and of a symbol. The question could thus be whether such a disagreement should be a crime.
DeleteIt is precisely because the flag "represents" a variety of things, and does so in a variety of ways, that flag-burning is ambiguous as to "what you mean" by it. In order to make others know clearly what you mean by it, you would have to EXPLAIN yourself. In words. Thus that very ambiguity is equally ripe for a legal constraint: if SOME of the possible meanings are evil and constitute civically reprehensible acts - i.e. crimes - then the fact that your act could have meant those things means you could be held responsible for those meanings. The fact that you knew of the ambiguity doesn't allow you to shed that responsibility merely because the most reprehensible senses were not the senses you attached to the act.
For example: if you are at a proto-riot that has almost, but not quite, kicked over into riot mode, and you start shouting "HATE" and "KILL", you could well be charged with incitement of riot. Even though what you meant was "I HATE Brussels sprouts" and "I would KILL for ice cream". That there is a theoretically benign sense of your exclamations doesn't relieve you of responsibility.
And the ambiguity of so-called "expressive acts" - as compared to speech - is definitely part of why I mentioned (below) that jurisprudence needs to consider them distinctly.
Shaggy,
DeleteCut down on the Scoobie snacks.
I cannot impose anything, nor would I want to. I thought I was presenting a counter argument to a particular concern that SMack brought up. His concern seemed reasonable and he seemed sincere. I wanted to give him something to think about perhaps leading to deeper discussion.
Please read this and consider how it applies to what you wrote:
https://en.wikipedia.org/wiki/Argument_from_incredulity
For people other than Shaggy:
Most Americans would favor a law banning flag burning and of those that don't think it's a good idea most wouldn't strongly oppose it. I linked to a recent poll below and here is a poll from 2006 asking about a Constitutional Amendment banning flag burning (different than just a law): https://news.gallup.com/poll/23524/public-support-constitutional-amendment-flag-burning.aspx. I'm not making an argumentum ad populum, just bringing to light how most Americans view the question, which in a democracy is relevant to the passage of laws.
@bmiller,
DeleteI feel like I'm walking into a long conversation I know nothing of ("Shaggy" implies a prior acquaintance I don't think I share), but anyway, while I didn't consider your point *risible*, I did have the same reaction to it otherwise.
It's true that government could declare that a particular action will mean a particular thing. But that is quite a different thing than what Feser was defending. He was simply presupposing an unambiguous meaning that, in fact, does not exist.
The government *could* define a particular meaning, but why it should do so, I can't imagine. As I say, it would in any event require a separate argument. Meanwhile, I think my retort to Feser's argument succeeds, since he was assuming unambiguous meaning at the baseline.
@Tony (but also still @bmiller),
It's interesting that you say that it's precisely the non-verbal nature of flag burning that leads to its ambiguity, yet give a verbal example of ambiguity in making your own point.
In truth, of course, language is also highly ambiguous. For example, there are many who think that telling sinners they are going to hell is an act of hate, *and that is indeed one of the motivations that might lead someone to do that.* Some countries in the world have decided to ban it for that reason. I would far rather they had left the freedom to let the ambiguity work itself out. And I feel the same here.
Ambiguity is ineliminable from human discourse. Starting to ban either actions or words because they have ambiguity and one or more of their possible interpretations is objectionable is a simply terrible idea.
If somebody burned the Nazi flag in 1935 in Germany, were they being impious?
@Thurible,
Indeed. I think the human urge is very strong to believe that the problems we face have all already been answered simply (and unambiguously!) in a grand system. It's so fascinating that the Bible is such an open-textured thing when compared with, say, the Summa. Though a great admirer of Ed's, I think he's at his weakest in these kinds of articles that boil down to easy applications of Thomas's writing to complicated problems; often it involves trimming down any genuine insights of modernity to some objectively less impressive (though, for its time, still equally impressive) result of medieval cogitation. I suspect Ed and I simply disagree on some important premises here.
@bmiller,
DeleteI just saw that I missed replying to one of your arguments. You write:
"If it is true that speech can be destructive of reason itself or the social order itself, then there would be no regime since that implies a social order. Right?"
I don't think I understand your point, unfortunately. Nevertheless, so as not to stall the conversation, I will choose one possible interpretation and reply to that, and you can correct me if you're wrong.
You seem to me (possibly) to be suggesting that, if speech can be destructive of the social order, then if uttered, such speech will destroy the social order, and so there will be no regime left to censor it.
It seems to me this takes an unrealistically expansive view of "destructive of." Speech could be destructive if it merely *tended toward* the destruction of the social order. There might, in many concrete instances, be countervailing factors that built up the social order and prevented the speech's success in such destruction. And then there would still be a regime to act or not to act with respect to the putative speech.
But I'm not sure if I've interpreted your point correctly, nor, if I have, what the "point" of your point was. Please expand.
To expand on what Tony said, if an act can be construed as either a crime or not a crime, then the solution is to remove the ambiguity, right? Write a law to do that. It seems perverse to argue to preserve the ambiguity if the goal is to communicate by the act what one means. That is unless the goal is use the ambiguity as a means to stick one's finger in the eye of an opponent while feigning innocence. Am I the only one to notice that this may be what is going on?
Deletebmiller,
DeleteI think one can just as well say that the goal is to exploit the ambiguity for righteous ends.
One burns the flag. Due to the possible wicked interpretation, people are shocked. The thoughtful will perhaps ask why somebody would do this, how they could have such strong feelings against the country? They may then notice in a new light the things being protested against and come to recognize that love for one's country can entail saying some very negative things about it.
The Old Testament prophets said quite a few things about Israel that I imagine Thomas might have found criminally un-pious.
More generally, to your opening question -- no, of course the solution is not to remove the ambiguity. Unless you're willing to do so with the example I gave, as well (speech that can be interpreted as either hateful or concerned for the soul).
DeleteSMack,
My previous post came before your response and your response seemed to miss my point.
This is your comment on the OP regarding what the flag represents:
This is where the argument fails, for me (or one place, anyway). People may disagree about what the flag represents
Yes, but if you agree that one of the possible representations is what Feser claims it is and that representation should be outlawed then the question should be "how can we remove the ambiguity so that innocent citizens can express their intentions without being mistaken as committing an outlaw act?" Of course if you think burning a flag should be allowed regardless of the intent, that is a different argument. But if you're interested in solving the dilemma you put forth, prohibiting flag burning allows rightly intentioned demonstrators to express themselves unambiguously in other ways as Feser argues:
to prohibit flag burning would in no way prevent the expression of any idea. For any idea the flag burner might want to express in that way could be expressed instead in another way
You say your retort succeeds because Feser argues for an unambiguous meaning while in fact some people conflate it with other ideas. But your retort just seems to be a restatement of the quote you selected from the OP. He is arguing that those people are wrong, not that they don't exist. That they exist doesn't mean they have a good argument. The Chief Justice of the Supreme Court back then didn't think they did.
Rehnquist on the decision in 1989:
“I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag,”
SMack,
DeleteI think one can just as well say that the goal is to exploit the ambiguity for righteous ends.
Sorry. Your example doesn't make sense to me. Does the protester wish the destruction of the country or only some policy? The natural interpretation is for the destruction of the country, so unless the observer thinks that's a good thing, why would he conclude that the act is "really" about policy not essential to the country? And how could symbolically burning down a country demonstrate love for that country? I mean a seriously confused person could think that, but I don't think that's a normal thought process.
It's not as if in 1989 there were no laws against this particular act and the reasons for the law were not known to the public. Take a look at why Congress enacted Flag Protection Act of 1968. It doesn't really matter legally that a citizen thinks it means something different once the legislature has established the convention. If it did, then what law couldn't be broken by an individual claiming First Amendment rights?
bmiller,
DeleteYou write, "if you agree that one of the possible representations is what Feser claims it is and that representation should be outlawed then the question should be "how can we remove the ambiguity so that innocent citizens can express their intentions without being mistaken as committing an outlaw act?""
Because the ambiguity exists, I don't believe that the argument succeeds that even the genuinely anti-pious flag burnings should be banned. (I think it fails for other reasons too, but those would go further to the root of philosophical disagreements, whereas I think this one makes the argument fail on its own terms.)
So I'm not interested in "solving the dilemma" that I put forth; I think the argument fails, and I also reject the conclusion (that flag burning should be banned). I was offering one of what I considered the possible refutations of an argument that I think is wrong.
You also write, "But your retort just seems to be a restatement of the quote you selected from the OP. He is arguing that those people are wrong, not that they don't exist."
I disagree with your readings both of me and of Feser. First, me: I don't just quote the OP. I say that the opinion he quotes to *defenders of flag burning" might also be shared by *flag burners.* This is a hugely important distinction, because whereas the former may just be offering rhetorical points, the intent of the latter actually goes to the meaning of their actions.
As for your misreading of Feser (which is related): he doesn't (therefore) allow that burners might mean that. He simply declares that flag burning means what he thinks it should mean. But that's highly non-obvious, and the existence of flag burners who disagree would call into question the necessity of his interpretation. And his interpretation's correctness is necessary for his whole argument to work.
"The natural interpretation is for the destruction of the country, so unless the observer thinks that's a good thing, why would he conclude that the act is "really" about policy not essential to the country? And how could symbolically burning down a country demonstrate love for that country?"
He may be expressing -- for example -- not that he wishes the country to burn down, but that he thinks it is burning down based on the actions of others. He may be picturing what he believes is happening, not saying what he wants to happen. Just to take one of the many examples of fairly obvious alternative interpretation that you ignore.
"It doesn't really matter legally that a citizen thinks it means something different once the legislature has established the convention. If it did, then what law couldn't be broken by an individual claiming First Amendment rights?"
Most laws have some purpose to ban what they ban other than its expressive effect. Even if I wanted to say that my murdering someone was really in protest of something or other, it would still be reasonable to punish my action, because it is wrong for its non-expressive effects.
Here, on the other hand, flag burning is banned precisely because of its expressive effects.
As for this point:
"to prohibit flag burning would in no way prevent the expression of any idea. For any idea the flag burner might want to express in that way could be expressed instead in another way"
It is not necessarily the case that it could be expressed *as powerfully* in another way. I suppose that one could say "bombing civilian cities is evil and atrocious" without painting Guernica, but yet it remains uniquely powerful.
SMack,
DeleteI don't believe that the argument succeeds that even the genuinely anti-pious flag burnings should be banned.
OK then. If you don't grant that burning a flag can legitimately be banned for any reason, then of course anti-pious flag burning should be allowed. But then it seems to me that the argument about possible ambiguity is just a distraction.
And his interpretation's correctness is necessary for his whole argument to work.
I don't get this. It sounds like you're saying his argument only works if his argument works. He gives reasons for why his interpretation is correct, he doesn't merely declare it. The mere existence of another opinion, which he acknowledges as existing, doesn't mean his argument therefore fails. I assume a *flag burner* will also be a *defender of flag burning* so I'm not sure what work you think making the distinction does.
We've gone on quite a while and I thank you for your thoughtfulness and civility. I'll let you have the last word if you want to.
bmiller,
DeleteThank you as well for a polite and thoughtful discussion. I'll just try to clarify a couple of small points.
I said: "I don't believe that the argument succeeds that even the genuinely anti-pious flag burnings should be banned."
You said: "If you don't grant that burning a flag can legitimately be banned for any reason, then of course anti-pious flag burning should be allowed. But then it seems to me that the argument about possible ambiguity is just a distraction."
You say that "I don't grant" that even anti-pious flag burnings should be banned, as though that was a premise I carried into analyzing the argument. But my claim was about *what the argument showed.* My point is that I think that Ed's argument that (even anti-pious) flag burning should be *banned* relies on all flag burning being unambiguously anti-pious. That is a point about the structure of his particular argument. One could imagine another argument that succeeded in saying that one should be banned, but not the other (though I'm skeptical); in any event, I don't discuss that. I am discussing Ed's argument.
In fairness, though, I think that a couple paragraphs earlier, Ed does try to distinguish different types of burning (even if tangentially), a point I had missed. I think he is no longer doing that by the point I quote, and he doesn't really seem interested in taking the concept seriously, but maybe one can imagine changing his argument to one that takes intent more seriously into account.
I would still disagree with him, but not for the reasons I developed above.
Blessings.
What about the rainbow flag? The company where I work seems to prefer the rainbow flag to our national flag, and especially in the month of June there are a lot of rainbow flags here!
ReplyDeleteIt's unbelievable that it is, most of the time, the judiciary power that comes up with these sophismatic, fabricated, and unhinged interpretations of the law or the constitution. Like, what kind of constitution, even in principle, would be so lunatic to permit its citizens to destroy the most sacred symbol of its own country?
ReplyDeleteBtw, anyone who engages in such activities should be jailed, and, if illegal, deported.
Ditto to Anon's comment. Didn't there used to be something in checks and balances regarding "advise and consent"?
ReplyDeleteI have several issues with this argument.
ReplyDeleteTo start, it's simply no good to appeal to Aquinas in defense of piety towards a modern nation-state, since nation-states did not exist in the 13th century, and so it takes some extra justification to demonstrate that Aquinas's piety towards "country" can be extended to that term in the modern sense. National flags didn't exist in the 13th century either, apart from the maritime flags of some Italian city-states. They, like nation-states, are a historical innovation, not a cultural universal. Even assuming the liceity of Aquinas's statements about the piety owed towards country (which, as you'll see, I would not), it is not clear that such piety can legitimately be transferred to modern nations and modern flags.
But that's not the fundamental issue. The issue is that, for millions of American Christians, the American flag is an object of idolatrous worship. Because Americans have been raised to worship the flag—seeing it marched down the aisles of their churches while patriotic hymns are sung, just like the crucifix; pledging their allegiance to it every morning in a state-instituted liturgy—they cannot see that their relationship to it is one of idolatry any more than a Roman who worshipped Caesar and the empire could. But just look at the language of Trump's executive order. He refers to the flag as "sacred," and to restoring its "sanctity." He speaks of its "desecration," as though it were the body and blood of Christ. These are not merely expressions of piety, but of worship. Americans pledge *allegiance,* not piety, to the flag.
But, contra Aquinas, even "piety" is not an absolute virtue for Christians. In fact, the early Christians were notorious for their impiety—towards the empire, their families, the gods, etc. The Catholic "both/and" has no place in the teachings of Jesus; not on this issue, at least. It's God OR Mammon; Light OR Darkness, Life OR Death, Jesus OR Caesar. The Old and New Testaments are full of stories of the righteous being persecuted for their failure to display proper piety towards those people and institutions who set themselves up as God's would-be rivals for our worship and devotion. "Render unto Caesar!" the idolaters cry, having failed to notice that "the things that are God's" leaves no room for Caesar at all.
I suppose it is hypothetically possible for a Christian to have a non-idolatrous love for their country, understood as the land and people (not state) of one's birth. But the modern nation-state aspires to absolute supremacy and it always has. America (in an analogical sense) "wants" to be worshipped, and throughout American history, millions of Christians have been content to give it the love and devotion due to God.
Keep doing that if you want. I'll be busy burning idols.
(As always, the real mistake is treating any act by Donald Trump is if it has some rationale besides pure wickedness. The man who pardoned the January 6 rioters has no right to lecture anyone on the proper piety due to one's country. His shamelessness is revolting.)
Did the early Christians burn or destroy depictions of Caesar, an act which would be on a whole different level (along with flag burning), than proclaiming and living out the truth contra a godless regime one happens to live under. Also, the early Christians were not even being impious by Feser's definition.
DeleteDo you think the modern nation-state has ANY legitimate authority? If it does, then you should submit to and be pious toward that authority insofar as it is legitimate and does legitimate things. Many parents are tyrannical towards their children, that doesn't undermine the command to "honor thy father and thy mother".
Delete@Anonymous 1
DeleteIn the early days, no. Such an act would have been suicidal. But becoming a Christian would have involved throwing out one's household gods, ceasing to take part in civic festivals, no longer making offerings to the gods, etc. And those acts were all central parts of the highly political and public pietas of the Romans. Romans constantly sought the favor of the gods, and made no distinction between political life and religion. One test for proving one wasn't a Christian was to venerate an image of the emperor and curse Christ; this test was developed by Roman magistrates because Christians were known for their obstinate impiety towards anything and anyone other than God. And, beginning in the second century, there are reports of saints smashing idols and defiling pagan temples, often by supernatural means. Saint Glyceria destroyed a statue of Jupiter (a far more impious act than burning a flag) and was martyred for it in 177 AD, to give just one example. Given the number of idols Christians are supposed to have smashed during the first three centuries of the Church, I find it difficult to believe that not one of them was a statue of the god-emperor.
@Anonymous 2
I think that piety towards any totalizing power which aspires to supplant God is idolatry. It is not morally or spiritually safe to offer qualified loyalty to something which demands absolute loyalty. The attitude of the Christian towards the nation-state should be indifference punctuated by defiance when necessary. The comparison to parents doesn't work, because there's nothing about the structure of the family which tends inherently towards tyranny or evil. I would say, however, that piety towards a wicked parent (if not very carefully practiced) would be a form of evil, because it would tend either to shape the child in their image or encourage them to adopt an attitude of compromise and excuse-making towards evil, dulling the conscience in the process. Remember also that Jesus has much harsher words for parents causing children to stumble that for children who don't obey their parents.
But really, I don't think anyone actually believes that we owe unqualified piety to all government to the extent that "it is legitimate and does legitimate things." Are you really going to tell me you wouldn't be scandalized to hear a Chinese Christian praising Xi Jinping and pledging allegiance to the Chinese flag? I've been to many services in the Chinese Three-Self Church, and the kind of piety towards the state that is preached within those walls is self-evidently antithetical to Christianity, neutering the Gospel into a harmless message of personal good conduct. Honestly, I don't see the point of half-piety towards an institution which demands all or nothing. What is being accomplished? How is Jesus being proclaimed? The government will still think you're an impious, seditious rebel, and those oppressed by the government will see you as a compromiser with evil. Better to save your piety for those who deserve it.
But, contra Aquinas, even "piety" is not an absolute virtue for Christians.
DeleteEgad! Aquinas expressly funnels piety FIRST toward God, and to lesser being subordinately. Thus there can never be real piety to the state that supersedes piety to God, it will be a false piety.
I suppose it is hypothetically possible for a Christian to have a non-idolatrous love for their country, understood as the land and people (not state) of one's birth.
Ewww, stepped in another pile of... The land, as land, is not an object of piety as such: it's just so much dirt, rocks, etc. The people as individuals are not the objects of piety (other than your parents), it is the people as brought together into a unified being that are the objects of piety. And that people becomes unified by things like shared religion, language, ethnos, history, government...which are all things that make a nation. The fact that the entity thus formed is not a physical entity is irrelevant: not all beings are physical.
As always, the real mistake is treating any act by Donald Trump is if it has some rationale besides pure wickedness.
If this comment weren't utter hyperbole, I would be appalled at its obtuseness. But being hyperbole, I will merely point out that since one of the things you hate about Trump is his over-the-top hyperbole: ...pot...kettle...etc. Yeah, Trump is asinine a lot of the time. And some of his acts are wrong. But some of them are not.
@Tony
DeleteYou're clearly suffering from what Catholic theologian Larry Chapp recently called the "mental illness" of Thomism: the belief that words have only one meaning—that defined by Thomas—and that his definitions are handed down once and for all when it comes to Christian philosophical discourse. Thomas did not invent either the word "piety" or the concept of pietas. It was a pagan/Roman virtue before it was a Christian one, and an absolute virtue in the sense that it applied in all times and places and purported to undergird the entire social order.
There is no hyperbole in my comment, by the way. You only think there is because, like all Trump supporters, you think Trump sprang into existence this morning—like a Boltzmann brain emerging from the quantum ether—and you have therefore conveniently forgotten all the things he's done during the past ~10 years that provide clear, incontrovertable evidence that he is an evil man who acts only from selfish, unvirtuous motives. May I suggest re-reading Dr. Feser's article "Trump: A Buyer's Guide?" That information alone should be enough to demonstrate not only that there is no hyperbole here.
Thurible,
DeleteIs there a written source for Larry Chapp's discussion of the "mental illness" of Thomism, connecting to the belief that words have only one meaning?. I found a passing comment in a youtube video featuring Chapp and Jordan Daniel Wood and I did not think that Chapp was very convincing; nor do many of his fellow nouvelle theologie theologians (which opposed the neo-Scholastic Thomism) have high regard for Chapp it seems. And Thomism does not believe that words have only one meaning. If Chapp actually makes that claim, he radically misunderstands Thomism.
You're clearly suffering from what Catholic theologian Larry Chapp recently called the "mental illness" of Thomism: the belief that words have only one meaning—that defined by Thomas—and that his definitions are handed down once and for all when it comes to Christian philosophical discourse.
DeleteI can see why you might think I was hyper-focused on Thomas's definition of piety, but in fact I wasn't. I only mentioned Thomas because the Feser article uses his understanding of it, and because YOU cited Thomas in your first line:
To start, it's simply no good to appeal to Aquinas in defense of piety towards a modern nation-state, since nation-states did not exist in the 13th century,
I am fine with other ideas about what piety is, but if you don't think his definition works for what Feser claimed, you should put forward a BETTER definition, not just nay-say. I also think your specific carp about the modern-ness of nation-states (and I agree that they are (largely) a modern innovation, (although even ancient Rome extended local Roman rights to Italy as a whole) is bunk: St. Thomas's point is that piety is a principle of behavior toward a general class of others: those to whom you owe a grave duty of thanks and reverence because of your dependence on them. This principle would apply to WHATEVER form your political order is, whether it is the clan, the city or city-state, the principality, or nation-state. Thomas says it applies to "On the second place, the principles of our being and government are our parents and our country, (patria)" and of course the Roman "patria" is the "fatherland", from which we grasp both that it stands something like a father to us, and that it is "the land" considered not SIMPLY as rocks and hills, but that land as peopled by a specific people organized into a community (including those organized as a political community). His use of the virtue, by being based on a principle, is not narrowed down to only what kinds of polities existed before and during his own times.
I am fine if you think piety is something else: give a better definition, and we can discuss it. If you think we DON'T owe gratitude and piety to our parents or to our patria, explain, and we can talk about that. If you think we can owe piety to a city but not to something larger, we can discuss that too. But in your initial diatribe you just cast out a bunch of conclusions without the least bit of explanation how you got to them.
There is no hyperbole in my comment, by the way. You only think there is because, like all Trump supporters, you think Trump sprang into existence this morning
Good Gravy, You are dense! I have been on record for pointing out that Trump was a life-long Democrat in 2000 when he first put his hat in the ring, he was a liberal on many issues and remains so; that he is not pro-life in any principled sense; that he is a blow-hard that lies about stuff regularly; and that he is (at least, was) an obvious womanizer. I don't like him, and wanted someone else to take the Republican ticket. I have stated that I think some of his tactics since Jan. 20 are immoral, including some unconscionable measures against the civil service, and outrageous claims over Greenland, among others. My only point was that YOUR comment As always, the real mistake is treating any act by Donald Trump is if it has some rationale besides pure wickedness. is hyperbolic: ANY ACT? You really, honestly believe that he never engages in being nice to someone just because he happens to like the person? Or that he never decides to oppose something (say, murder) because he thinks it's immoral and ought to be opposed? NEVER? If you honestly think that, you must think him more evil than any human who ever lived, but I've got news for you: he isn't a BIG ENOUGH person to be that evil. He's too venal for that level of monstrosity.
I think that piety towards any totalizing power which aspires to supplant God is idolatry. It is not morally or spiritually safe to offer qualified loyalty to something which demands absolute loyalty.
DeleteEven on your own grounds, piety to America is (or at least, need not be) that kind of disordered piety: America was founded on the principle of LIMITED government. The Bill of Rights constitute restraints on the government, enacting in law that the government must not become that totalizing power which demands absolute piety. If it has moved in that direction under the influence of bad philosophies, it has not FULLY achieved that level of standing: if there are 5 million people who give it that level of idolatry (which I doubt), there are 150 million who most certainly DON'T. (There are another 150M who don't give ANYTHING AT ALL their absolute piety, but come closest to allocating that position to their belly and genitals - certainly not the state.)
The attitude of the Christian towards the nation-state should be indifference punctuated by defiance when necessary.
You appear to base this on an unaccountable conjoining of "evils of the nation-state" with evils of modern life. But was there ANY state in history that was so conformed to the right that it rightly warranted piety? If so: ok, so when that state first started to go bad, was that the moment you no longer owed it piety? No? When it was going bad for a generation? Two?
I refer you to St. Paul's letter to Titus: Remind them that they have a duty of submissive loyalty to governments and to those in authority, of readiness to undertake any kind of honourable service.
"Submissive loyalty" is another way of describing the (limited) piety owed to your patria. But St. Paul's context of it was in pagan Rome, and other (local) pagan subordinate states. Due loyalty is indeed tempered by just how far wrong the state has gotten, but until it MUST be overthrown, it generally harbors some good which justifies some loyalty. This is not "indifference punctuated by defiance."
I agree with The Great Thurible on everything - I think it's ridiculous to want to forbid flag burning, and I even think piety towards one's country is stupid. I think he made a great job explaining how American national patriotism borders on idolatry, if it isn't already outright idolatrous in some cases. I think that banning flag-burning is stupid and that kind of reasoning against the First Amendment can have horrible repercussions, especially when the pendulum shifts and we get another Democrat president - and they surely have very different views on what the national ethos is and what we should and shouldn't display piety towards.
DeleteThat being said, his comment about Trump is incredibly stupid. His doubling down on it and saying that it wasn't hyperbole is also insanely stupid. This is why people speak of Trump derangement syndrome. This doesn't help public discourse at all, either
Mtwewy,
DeleteRegardless of whether you think 48 states and Congress was stupid to ban flag burning in 1968, being concerned that Democrats will ignore the First Amendment if they get in power because, once again, overwhelmingly popular legislation is passed to outlaw flag burning you haven't been paying attention.
Democrats have already weaponized the government against people with the "wrong" ideas.
Like Operation Artic Frost for one example:
https://nypost.com/2025/09/16/us-news/fbi-arctic-frost-probe-targeted-nearly-100-gop-groups-including-charlie-kirks-tpusa-docs/
No one is necessarily arguing that any such law should be passed, only that it is not wrong or unconstitutional if one were to pass. But I will make the point that almost all of the states, including Democrat majority states passed flag desecration laws before they were all struck down by SCOTUS.
Conspicuously missing from this argument is the acknowledgment that there may be situations in which contempt for one’s country (and the public display thereof) may be morally justified.
ReplyDeleteI am sure every reader has one or more past or present nations they can conjure for an example.
Of course, the prudence of this act is an entirely separate matter - assuming Prof Feser’s moral framework.
Thomas Aquinas was born into an aristocratic family that had its own distinctive heraldry that was used on flags and banners. So did the Holy Roman Emperor at that time. So governments used flags to symbolize their authority at that time. Unless one wants to argue that Aquinas would have considered modern nation states as illegitimate, then it seems reasonable that he would see flags as representing the government of those nations just as they did for the government in his time.
ReplyDeleteAquinas did not ground the virtue of pietas in the specific political structures of his day, but in the natural law obligation to honor those who have given us life, formation, and protection. Whether that benefactor is a medieval kingdom, a tribal confederation, or a constitutional republic is immaterial to the principle. The form may change; the moral debt does not.
ReplyDeleteTo dismiss Aquinas’s insights on the grounds that national flags and modern states are recent inventions is to confuse historical novelty with moral irrelevance. The flag, like any symbol, is not sacred in itself—but it can represent something worthy of honor: the sacrifices of ancestors, the ideals of justice, the bonds of civic friendship. To honor such a symbol is not to worship it, any more than honoring a crucifix is to worship wood and metal. The distinction between reverence and idolatry is not semantic—it is theological.
The charge that millions of American Christians worship the flag is serious, but it is not substantiated by the mere presence of patriotic hymns or pledges. Worship is not defined by emotional intensity or ritual form, but by the attribution of divine status and ultimate allegiance. Christians who honor the flag while reserving worship for God are not idolaters; they are citizens expressing gratitude. That some may cross the line into idolatry is undeniable—but it is not a universal indictment. The misuse of a symbol does not negate its legitimate use.
Moreover, the critique misrepresents the nature of allegiance. Allegiance is not worship—it is loyalty. Christians are called to render unto Caesar what is Caesar’s, and unto God what is God’s. This is not a call to absolutism, but to discernment. The early Christians were not impious in the Thomistic sense; they refused to worship Caesar, but they honored rulers, paid taxes, and prayed for the empire’s peace. Their resistance was theological, not anarchic.
The dichotomies invoked—God or Mammon, Jesus or Caesar—are scriptural, but they are not exhaustive. They warn against divided ultimate loyalties, not against all forms of civic engagement. The biblical tradition is rich with examples of faithful believers serving in pagan governments, honoring kings, and seeking the welfare of their cities. Daniel did not worship Babylon, but he served it. Joseph did not worship Pharaoh, but he governed under him. These are not compromises—they are models.
Finally, the critique collapses into political polemic, targeting Donald Trump as the embodiment of civic idolatry. But the moral character of a single leader does not determine the legitimacy of civic piety. One can reject Trump’s rhetoric and actions while still affirming the value of honoring one’s country. To burn idols is noble—but one must first be sure they are idols.
Meaningless hairsplitting. All of it. Yes, I accuse millions of American Christians of idolatry; in fact, I do not "accuse;" I condemn. To claim that the forms of reverence have no bearing on the meaning of the act—that the significance of a ritual is purely intellectual—is an utterly spurious argument. The medium is the message; that's the underlying assumption of having a liturgy in the first place. You might as well argue that someone can prostrate themselves before a statue of Caesar, burn incense, offer meat and wine, and yet that their motives are still unclear (Maybe they're just grateful towards the Roman Empire?). Have a little piety towards the martyrs who died because they believed otherwise.
DeleteShaggy,
DeleteYou just argued up there that people can have different opinions on what the flag represents but now you argue that only your opinion of what patriotic acts mean is true and any other is the mortal sin of idolatry.
I hope you keep discussing and not drop out as usual.
@Thurible - If the medium is always the message, then every liturgical form would be equally determinative of meaning, regardless of intent or context—which collapses into ritual determinism. But Christian theology has long held that intention matters: sacraments are invalid without it, and martyrdom is not defined by posture alone but by fidelity of heart. The early Christians refused to burn incense to Caesar not because incense is inherently idolatrous, but because the act was meant as divine homage. That’s precisely why discernment is necessary.
DeleteYou condemn millions based on external forms without attending to internal allegiance. That’s not doctrinal clarity—it’s moral overreach. The martyrs died because they refused to worship Caesar, not because they refused to show any civic respect. If you flatten all reverence into idolatry, you not only dishonor their theological precision—you risk turning every act of gratitude into blasphemy.
Piety toward the martyrs includes honoring their discernment, not just their defiance.
Dr. Feser,
ReplyDelete"If parents tolerated such expressions of insolence from their children, their authority would be undermined and the stability of the family threatened."
Yet there are clearly situations where the stability of the family should be disrupted, such as cases of major physical or emotional abuse or combinations of both. The analogy has a bias since most of us grew up in relatively stable, caring homes it would indeed be showing contempt to try to undermine it. In an abusive home the motivation is flipped and it is a matter of justice to reveal the harms taking place. There are prudential aspects to consider as well but in principle it cannot be wrong to undermine piety that is masking abuse.
Also, it has been too long for me to recall your stance on NFL players kneeling during the anthem. Even if you decide destruction of a civic symbol is too extreme, peacefully opting out of a civic ritual cannot be considered threatening.
BTW, it seems that two thirds of Americans favor there being a law against flag burning. So not very controversial.
ReplyDeletehttps://www.cbsnews.com/news/cbs-news-poll-on-why-americans-fly-the-flag/#:~:text=The%20flag%20and%20protest,error%20is%20%C2%B12.6points.
Dr. Feser, I asked this question under a recent entry of yours, and understand that you can't reasonably deal with every question. But I'll try again in this article's context.
ReplyDeleteIt strikes me that not every modern nation-state may have an uncomplicated claim on its subjects' pieties or their loyalties, or that such pieties are even the ordinate response to the government that styles itself one's "country." In your judgment, was the Soviet Union right under natural law to ban the flags of Lithuania, Latvia, and Estonia? Would a pre-1990 Balt who viewed & treated the USSR as his enemy have been guilty of offenses against piety? Consider the case of two neighbors in currently Russian-occupied regions of Ukraine. The first man burns a Ukrainian flag. His neighbor burns a Russian flag. Which man is guilty of impiety? Is either? Or both?
Since the Prof has not taken time to answer, I will attempt an answer of some kind.
DeleteIt must be admitted up front that some governments are not acceptable governments and are not due any piety at all. A strict tyranny that attempts to convert all citizens into slaves of the ruler, and further attempts to force them to worship idols (including the ruler), and to force citizens to publicly engage in injustices and malevolence in order to break their spirits, would be an example. But even with a government like this, it might not be within prudence to conclude every citizen morally MUST revolt against it at every moment: there might be times and conditions which affect some so their prudent course is to suffer some evil rather than be struck down. But generally if the state is so corrupt that the citizenry morally is justified to overthrow it if they can, that seems to justify not having piety toward it even if you cannot overthrow it. But you can still be grateful to God for whatever just laws that state upholds, even if they have those laws primarily for unjust further goals. "you meant evil against me, but God meant it for good" (Gen. 50:20)
Suppose a government is a poor state but not so evil as to call for overthrowing it, and then it undertakes by imperialism to grab other states and force them under its rule: The act of tyranny against the other state and its citizens may not undermine the duty of piety its own citizens have toward it, but the tyrannical act of imposition doesn't by itself cause the people of the other state so subjugated to owe it piety, even if it is successful in subjugating them.
However, over a period of time - long or short depending on vastly many details - it is possible for the imperial state to become the legitimate ruler of the other state's people. I would presume that at least part of this process includes the manifestation of the ruling state to institute laws over the ruled state that are just and geared toward the common good. It seems obvious that IF the acquiring state HAS become the legitimate ruler (in the moral sense, not in a sense of, say, acceptance by other nations) then it has become the rightful object of piety.
More difficult is that during the process the people of the subordinate state will be in a state of flux and doubt: for some (who are more affected by the justice of most rules) it will seem legitimate, while for others (who are more affected by the injustices stemming from the original unjust take-over) it will NOT seem legitimate, with varying degrees for both. This is an unsolvable, contentious matter that we should EXPECT to not have a single, definite and certain answer for every citizen. In such case, the reasonable lack of certainty justifies restraint of full piety even if it doesn't necessarily justify disobedience. Piety can come in degrees, even as the state can have varying degrees of goodness as a state.
In the case of the USSR, I suggest that they were at least CLOSE to the conditions of an absolutely immoral state that every citizen was justified in not having piety toward it: while a voluntary, religious communism might have some just basis of a sort, the aggressive materialistic communism of the USSR which tolerated no other piety (even to parents) was gravely evil in its foundations and throughout. And they were in the stance of acting with unjust tyranny in asserting take-over of the Baltic states - and probably remained so for the entire 45-year period.
Tony: Thank you very much! Feser's article did have me wondering, especially since so many states (some not dictatorial at all) govern regions whose bonds to the state are justly complicated, and whose obligations to piety are debatable. Leaving aside the obvious cases of tyranny, we have areas such as Catalonia, Brittany, Québec, and even--dare I say?--some parts of the U.S. whose union with their nominal countries have been something less than voluntary. And yet none of these places are without piety for what they take to be their more local, less abstract objects of loyalty.
DeleteEdward Feser: The Dictator's Philosopher. Congrats on doing the backbone philosophical work to tear down our first amendment rights bit by bit.
ReplyDeleteEven assuming the arguments are sound Ed, right now is not really the time to embolden the wicked in their pursuit of tearing down free speech rights because they will go beyond just flag burning.
I think abstaining from writing such an article is what prudence would have required. You did your fellow countrymen a disservice with that article
The First Amendment protects “freedom of speech” and “of the press,” and the distinction between these two clauses is not merely stylistic—it is substantive. “Speech” refers most naturally to spoken verbal expression, while “press” refers to the written and published word. If “speech” were meant to encompass all forms of personal expression, including writing, publishing, and symbolic conduct, then the separate protection of “the press” would be redundant. The inclusion of both suggests that the Framers understood these as distinct categories of communication, each requiring its own safeguard.
DeleteThis textual distinction becomes especially relevant when evaluating whether acts like flag burning fall under the protection of “speech.” Flag burning is not speech in the ordinary sense. It is conduct—behavior that may carry expressive intent, but which is not itself verbal or textual communication. To treat all expressive conduct as “speech” is to stretch the term beyond its natural and historical meaning, effectively collapsing the boundaries of the First Amendment into a catch-all for any act with symbolic overtones.
The courts have long recognized that not all expressive conduct is protected. In United States v. O’Brien (1968), the Supreme Court upheld a law prohibiting the burning of draft cards, even though the act was intended as protest. The Court ruled that the government’s interest in maintaining the draft system justified the restriction, establishing a test that allows regulation of expressive conduct when the government’s interest is unrelated to the suppression of expression. Similarly, in Erie v. Pap’s A.M. (2000), the Court upheld a ban on public nudity, even when the nudity was part of expressive performance. These cases demonstrate that expressive conduct can be regulated when it conflicts with legitimate governmental interests.
Flag burning, like nude protest, may be expressive, but that does not place it beyond the reach of law. The state may have compelling interests in preserving public order, protecting national symbols, or maintaining civic unity—interests that do not necessarily target the message of the act, but the act itself. If nude protest can be criminalized despite its expressive dimension, then flag burning, too, can be subject to lawful restriction without violating the First Amendment.
The modern doctrine of symbolic speech, developed in the latter half of the 20th century, represents a significant expansion of constitutional interpretation. But this expansion is not compelled by the text of the Constitution. A more restrained, textually faithful reading would limit “speech” to verbal expression and “press” to written communication, leaving symbolic conduct like flag burning to be addressed through the ordinary legislative process. Such a reading preserves the integrity of the First Amendment while respecting the distinction between expression and behavior.
A textualist reading of the First Amendment does not compel the conclusion that “speech” is limited to oral utterances and “press” to the written word. At the time of the founding, the term “speech” was often used broadly to refer to expression in general, not merely verbal utterances. Likewise, “the press” was not meant to protect a separate category of expression, but to safeguard the means of dissemination—printing presses, pamphlets, newspapers—through which speech could reach the public. The clauses are complementary, not mutually exclusive. The redundancy objection dissolves once we recognize that “press” protects the institutional channels of communication, while “speech” protects expression itself in all its forms.
DeleteSupreme Court doctrine has long reflected this broader understanding. In Stromberg v. California (1931), the Court held that displaying a red flag was protected speech. In Tinker v. Des Moines (1969), the Court affirmed that wearing black armbands was a form of “symbolic speech” protected under the First Amendment. These precedents recognize that expression is not confined to words; humans communicate through symbols, gestures, and acts that convey meaning just as effectively as spoken or written language. Limiting the First Amendment only to verbal or textual expression would ignore this fundamental reality of communication.
The cases cited (O’Brien and Erie) do not establish a general rule that symbolic expression is outside First Amendment protection. Instead, they demonstrate that the Court already uses a balancing test: expressive conduct is protected, but can be regulated when the government has a sufficiently important interest unrelated to suppressing expression, and the regulation is narrowly tailored. This test presupposes that symbolic conduct is within the First Amendment in the first place—otherwise, no balancing would be required.
Flag burning falls squarely within this principle. In Texas v. Johnson (1989), the Court explicitly rejected the argument that flag desecration laws regulate conduct rather than expression, holding that burning a flag in protest is expressive conduct at the core of political speech. The government’s asserted interests in preserving national unity or respect for the flag were deemed impermissible because they were directly tied to the suppression of a disfavored message. This is unlike O’Brien, where the interest was in preserving draft cards for administrative purposes, not silencing a viewpoint.
Finally, a “restrained” reading that excludes symbolic conduct would actually undermine the First Amendment’s central purpose: to safeguard dissent and protect unpopular expression. The Framers had just fought a revolution sparked by symbolic acts of protest—the Boston Tea Party, effigy burnings, public demonstrations—all of which were not “speech” in the narrow, verbal sense. To deny constitutional protection to symbolic expression would insulate the very acts most likely to provoke government suppression: those that use visible, dramatic conduct to challenge authority.
In short: limiting “speech” to spoken words and “press” to text is neither textually inevitable, historically faithful, nor doctrinally sound. The broader principle of protecting symbolic expression is consistent with both the spirit of the First Amendment and its role as a bulwark against governmental suppression of dissent.
In short: limiting “speech” to spoken words and “press” to text is neither textually inevitable, historically faithful, nor doctrinally sound.
DeleteOK. But neither is it doctrinally sound to equate protection of speech as being literally on the same grounds, extent, and basis as protection of expressive acts as if they were one and the same. It is possible to argue that the 1st amendment should protect expressive acts too, but not in the very same manner, context, and degree it protects speech. Thus I would suggest modifying Bill's last point to:
The modern doctrine of symbolic speech, developed in the latter half of the 20th century, represents a significant expansion of constitutional interpretation. But this expansion is not compelled by the text of the Constitution. A more restrained, textually faithful reading would ... allow different treatment of verbal speech and expressive acts, even though both come under the rule for protection. It is obvious that a nude protest can violate needed norms of behavior even while it makes a worthwhile protest, just as an "assassination protest" would do the same. And behavior is subject to different treatment than speech, so its protection warrants different modeling for protection.
@Anonymous, please see my reply to Tony below. I wrote my reply in Word before posting it and pasted it in the wrong spot.
DeleteI completely agree with Feser that the flag-burning of these days is wrong. I further agree that there is no absolute principle of the natural law that protects flag-burners from legal consequences for such wrongful acts...not in principle.
ReplyDeleteBut I fear that Feser has made a couple of small blunders that, umm, blunt his message here. First, a national flag may represent the nation primarily, and not the government of the nation, but that's not essentially the case. Take Russia: under the Soviet Union, their flag was that particular flag with the hammer and sickle on account of that government: they changed the flag to suit their goals and ideology. Hatred of the evil government went hand in hand with hatred of the flag they chose to represent the communist idea: many Russian patriots hated that communist flag, and rightly so. Burning that flag did not represent hatred of RUSSIA, not at all.
Secondly, while it is (obviously) possible to love hate the horrible government of your own nation while loving the nation itself, there is no principle that makes it so that the nation itself cannot be so degraded, so horrific in what makes it a nation, that it should cease to be as a nation. Arguably, this is the judgment that God made regarding Canaan, and the Amalekites. If its religion and the tenor of its general ethos is vile and perverse, maybe the nation itself should cease to exist, and surely one should not have piety toward such a nation. (Note that this does not automatically imply killing all of the individuals: it is as collected and organized that they are the substance of the nation, so disperse them and (generally) the nation ceases.)
But in both of these, it MATTERS what kind of objection you are raising about your government and your nation: it's one thing to say "that there's an awful injustice, it must be changed", and another thing entirely to say "the whole edifice is too evil to permit, throw it out completely". The latter is almost always erroneous: few injustices cannot in principle be righted within the system, and hardly ever is a whole nation gravely, perversely evil in its very core. And, in point of fact, neither the government nor the nation of the US today are such evils.
Feser is, I believe, right that we need a better body of jurisprudence about free speech. For one thing, I am extremely skeptical that speech and expressive acts should be held to occupy EXACTLY the same protected status: there are important differences, and those differences bear on the very issues at hand. But even with better jurisprudence, I am not 100% convinced that it would be prudent here in this US to ban flag-burning. (But I am fine with the perpetrators making themselves the butts of many social penalties from people who repudiate them for their wrongful views.)
The First Amendment’s protection of “speech” and “of the press” invites careful textual scrutiny. These are not interchangeable terms, nor are they stylistic flourishes. “Speech” most naturally refers to spoken verbal expression, while “press” pertains to the written and published word. If “speech” were intended to encompass all forms of personal expression—including writing, publishing, and symbolic conduct—then the separate protection of “the press” would be redundant. The inclusion of both suggests that the Framers understood these as distinct categories of communication, each requiring its own safeguard.
DeleteSome argue that “speech” was broadly understood at the founding to include general expression, and that “press” merely protects the means of dissemination. But this interpretation risks collapsing two distinct constitutional protections into one. If “speech” already includes all expressive forms, then “press” becomes superfluous. A more disciplined reading sees “speech” as spoken expression and “press” as published materials—distinct modes of communication, each vulnerable to different forms of suppression.
This distinction becomes especially relevant when evaluating whether acts like flag burning fall under the protection of “speech.” Flag burning is not speech in the ordinary sense. It is conduct—behavior that may carry expressive intent, but which is not itself verbal or textual communication. To treat all expressive conduct as “speech” stretches the term beyond its natural and historical meaning, effectively collapsing the boundaries of the First Amendment into a catch-all for any act with symbolic overtones.
Judicial precedent has expanded First Amendment coverage to include symbolic acts, but this expansion is doctrinal, not textual. Cases such as Stromberg v. California and Tinker v. Des Moines reflect a shift in judicial philosophy, not a necessary implication of the constitutional language. The balancing test articulated in United States v. O’Brien—which permits regulation of expressive conduct when the government’s interest is unrelated to suppressing expression—presupposes that symbolic conduct is only potentially protected. The very need for such a test confirms that symbolic conduct occupies a contested and conditional space within First Amendment jurisprudence.
Texas v. Johnson represents the high-water mark of symbolic speech protection, holding that flag burning in protest constitutes expressive conduct at the core of political speech. But this ruling rests on a controversial premise: that burning a flag is “speech” rather than conduct. The act is expressive, yes—but so are countless behaviors that fall outside constitutional protection. The Court’s decision reflects a philosophical commitment to expressive liberty, not a textual inevitability.
To exclude symbolic conduct from First Amendment protection is not to deny its value, but to recognize that the Constitution does not enshrine every expressive act. The Framers could have written “freedom of expression,” but they did not. They chose “speech” and “press,” and that choice carries interpretive weight. A restrained, textually faithful reading limits “speech” to verbal expression and “press” to written communication, leaving symbolic conduct like flag burning to be addressed through the ordinary legislative process.
Such a reading does not undermine the First Amendment’s purpose—it preserves it. It protects the core modes of democratic discourse while respecting the distinction between expression and behavior. To constitutionalize every expressive act is to erode the very boundaries that give the First Amendment its structure and coherence. Symbolic protest may be powerful, but its regulation belongs to the realm of lawmaking, not constitutional absolutism.
Bill,
DeleteIf I may, three questions for you:
1. If someone sets ablaze a different flag (maybe with a similar design) and claims it represents the Stars and Stripes should they be arrested for destroying a symbolic token?
2. Suppose a protester only states a desire to set it aflame and rhapsodizes at length in poetic detail about burning it. Do their free speech rights protect them from a vividly described imagined act?
3. Under the O'Brien test, what specific "content neutral government function" is being prevented by burning a privately owned flag?
1. On burning a symbolic replica of the flag:
DeleteIf someone burns a flag that merely resembles the Stars and Stripes and claims it represents the national symbol, the legal implications hinge not on their subjective intent but on the objective status of the item. The state’s interest in protecting the integrity of the national flag—whether symbolic, ceremonial, or civic—is not triggered by private reinterpretations. However, if the act is performed in public and incites disorder, it may still be subject to regulation under general laws governing public safety or incitement. The key point is that the First Amendment does not protect conduct merely because the actor assigns it expressive meaning.
2. On poetic fantasizing about burning the flag:
Verbal expression—even vivid, provocative, or disturbing—is still speech. The First Amendment protects spoken words, including hypothetical or imaginative statements, unless they cross into incitement, true threats, or solicitation of imminent unlawful action. A poetic monologue about burning a flag, however distasteful, remains within the realm of “speech” and thus merits constitutional protection. This underscores the distinction I’ve argued for: speech is verbal; conduct is behavioral. The former is constitutionally safeguarded, the latter is subject to regulation.
3. On the O’Brien test and privately owned flags:
The O’Brien test permits regulation of expressive conduct when the government’s interest is unrelated to the suppression of expression. In the case of flag burning, the state may invoke interests such as preserving public order, preventing fire hazards, or maintaining civic unity. These are content-neutral functions. The fact that the flag is privately owned does not negate the state’s interest in regulating the act itself, especially when performed in public. Just as nude protest can be criminalized despite its expressive dimension (Erie v. Pap’s A.M.), so too can flag burning be restricted without violating the First Amendment—provided the regulation targets the conduct, not the message.
In sum, symbolic conduct may carry expressive intent, but that does not automatically elevate it to the status of “speech” under the Constitution. The Framers chose their words carefully. They protected “speech” and “press,” not “expression” in the abstract. To constitutionalize every expressive act is to dissolve the boundaries that give the First Amendment its structure and coherence. Flag burning may be powerful protest, but its regulation belongs to the realm of lawmaking, not constitutional absolutism.
Bill,
Delete1. I don’t see how subjective comprehension can be considered a cause for regulation based on safety or incitement. Either the objective status is the only legally relevant factor or its subjective status also plays a role, even if that subjectivity is spread out among a public crowd.
2. Mostly agree with you, my main quibble is the O’Brien test was clarified by later rulings so the regulation should be tailored to preserve “ample alternative channels of communication”. So I think the emphasis should be on minimizing restrictions.
3. Related to point 2 above, I would claim that broad terms like civic unity and public order are much too vague for a government that is sufficiently paranoid or dishonest; and fire hazards are rarely ever an actual problem. We have already seen crackdowns on protests against foreign policy mischaracterized as hate speech and now even domestic policy spoken dissent is elevated to "terrorizing threats" as a flagrant pretext to suppress criticism. I enjoy legal theory but I'm not going to be blind to the current reality around me.
1. On Subjective Comprehension and Regulation
DeleteYou're right to raise the tension between subjective perception and legal objectivity. But the law does, in fact, account for audience perception in certain contexts—particularly when it comes to incitement, fighting words, or breach of the peace. The Brandenburg test, for instance, hinges on whether speech is “likely to incite imminent lawless action,” which necessarily involves a judgment about how a reasonable audience would interpret the act. Similarly, Chaplinsky v. New Hampshire upheld restrictions on speech that by its very utterance “inflicts injury or tends to incite an immediate breach of the peace.” These are not purely subjective standards, but they do incorporate public reaction as a legally relevant factor. So while the law doesn’t criminalize expression based on mere offense, it does allow regulation when the expressive act predictably provokes violence or disorder.
2. On the O’Brien Test and Alternative Channels
Agreed. The O’Brien test was clarified and supplemented by later rulings, especially in the context of time, place, and manner restrictions. The requirement that regulations leave open “ample alternative channels of communication” is a key safeguard against overreach. That said, this principle still presumes that the conduct in question qualifies as speech in the first place. If flag burning is not speech but conduct, then the O’Brien framework applies only insofar as the government is regulating expressive behavior—not speech per se. So the debate hinges on whether symbolic acts like flag burning should be treated as speech at all, which is precisely where textual and historical arguments come into play.
3. On Vague Standards and Government Abuse
This is a crucial concern, and I share your wariness. Terms like “public order” and “civic unity” are indeed vulnerable to abuse, especially in politically charged climates. The risk of pretextual enforcement—where laws are applied selectively to suppress dissent—is real and well-documented. But that’s not an argument against all regulation; it’s an argument for narrow tailoring, judicial oversight, and constitutional vigilance. The existence of abuse does not negate the legitimacy of the principle—it calls for its careful application. Just as we don’t abolish laws against incitement because they might be misused, we shouldn’t assume that all regulation of symbolic conduct is inherently suppressive. The challenge is to distinguish between legitimate regulation and ideological censorship, and that requires both legal precision and political courage.
The exchange above makes this whole post thread worthwhile, thanks for both of your input, Bill and Step2.
DeleteI think Bill's point is excellent, that there is ample ground for believing that the Framers considered "speech" and "expression" not identical, and chose to put "speech" into the protected class of the 1st amendment aware of the distinction. While it may be a plausible theory that the amendment should have protected "expression", and it may be wise to protect expression, but the critical fact of the matter is that there is enough difference in their essences between them to make handling of them require different treatment. And as a result, it is unwise to simply assume that the very same body of rules that protect speech is supposed to protect expressive behavior in the very same way.
I think nude protest is an admirable poster-child for this issue. One can argue, for example, that the government shouldn't suppress the point of view that evoked that protest, and therefore shouldn't suppress the act of protest. But it is equally obvious that such a means of protest may be violating some entirely DIFFERENT public good than the good in the mind of the protester who is trying to affix attention on that good or its loss. Like vandalism, theft, and battery as a means of protest: the fact that your POV ought to be allowed a place in the public square doesn't mean your means of getting it there doesn't contradict other rules besides those of speech.
The root point (or at least one of them) is that expressive behavior is behavior and therefore you complicate matters when you mix the two. We shouldn't just ASSUME the rules that tell us how to protect speech will just plain work for protecting the expressive part of expressive behavior.
I note also that in the case of nude protest (and some others), if the POV at issue is precisely on point of the nudity, e.g. that "clothing is evil" or "modestly laws are evil", I simply DON'T believe that the expression of it through public nudity should be protected merely on that account: It shouldn't be automatically the case that the community's standard for a public good must take second fiddle to someone who disagrees with that standard and then violates the rule in order to protest it. Protest it by speech, which doesn't violate the community's standard, and if you can get the community to adopt your POV, THEN the law can be changed and you don't have to break the law to be nude in public. Yes, many public goods trump expressive behavior that violates those goods.
Bill,
Delete1. The provocation must be imminent for incitement and directly stated for fighting words, neither of which applies in this context. To regulate this conduct is functionally to criminalize the speech of claiming X represents the national flag.
As a side note, I will mention how much of a hot mess Chaplinsky v. New Hampshire was. Chaplinsky was attacked by a crowd for proselytizing in public and later insulted a marshal who deliberately left when the violence began so the harm was unrestrained. This was a weak basis for the fighting words doctrine, he had massive justification to be furious.
2. We’ve been discussing landmark legal cases decided by textual and historical arguments. The emphatic trend of those cases is there is a speech element to symbolic conduct. You can always argue the merits of course, but appeals to an understanding from the distant past are a denial of the intervening history.
3. The Bill of Rights and the framework of checks and balances were designed specifically because the Founders were concerned with protecting the public from government overreach. Moreover, after noticing the current abuses taking place it is unreasonable to assume a dismantling of what you called the high-water mark of symbolic speech protection will not enable more egregious mistreatment. Appeasement isn’t political courage; it is surrender to a bully.
1. On Incitement, Fighting Words, and the Nature of Regulation
DeleteYou're right that incitement requires imminence and fighting words require direct provocation—neither of which typically applies to flag burning. But as stated previously, the deeper issue is whether flag burning qualifies as speech at all. If the term “speech” includes all forms of expression, then the separate constitutional protection for “the press” becomes superfluous. The press is the written word; speech is the spoken word. Both are forms of personal expression, yet the Constitution distinguishes them. This implies that not all expressive acts are speech, and symbolic conduct like flag burning—however expressive—does not automatically fall under First Amendment protection. To regulate such conduct is not to criminalize speech, but to treat behavior as subject to law, as we do with vandalism, arson, or other expressive but unlawful acts.
2. On Historical Development and Symbolic Speech Doctrine
Yes, the courts have developed a doctrine that treats symbolic conduct as speech. But that development is judicial, not textual. The Constitution does not say “expression” or “symbolic acts”—it says “speech.” The expansion of that term to include conduct is a product of 20th-century jurisprudence, not 18th-century drafting. Appealing to the original understanding is not a denial of history—it’s a critique of its trajectory. Legal history is not self-validating; it must be measured against constitutional fidelity. If symbolic conduct is now treated as speech, that may reflect cultural shifts, but it does not settle the question of whether such treatment is correct or textually sound.
3. On Government Abuse and the Risk of Overreach
I share your concern about government overreach. But the solution is not to inflate constitutional categories to shield every expressive act. The Bill of Rights was designed to protect speech, press, religion, and assembly—not every form of symbolic protest. If flag burning is not speech, then its regulation does not dismantle speech protections—it simply restores the boundary between expression and behavior. The danger of abuse is real, but the answer is judicial scrutiny of enforcement, not the constitutionalization of every expressive gesture. Courage is not refusing all regulation—it’s insisting that regulation be lawful, limited, and constitutionally grounded.
Bill and Step2.
DeleteThanks for the best discussion on this topic.
This site has the majority and dissenting opinion for Texas vs Johnson. The opinions contain the details of what was done and what was said. Also the opinions discussed the points both of you brought up:
https://supreme.justia.com/cases/federal/us/491/397/
This may help clear up confusions about the facts of the case, previous rulings and the reasoning behind both sides.
1. A symbol is not the tangible body it represents. Suppose someone makes a flag with the McDonald’s arches on it, one of the most recognizable designs in the world, and claims their evil mascot Ronald corrupts children. Burning that flag in a purifying fire doesn’t harm any property, employees or customers of McDonald’s. I believe most people would correctly think such conduct is dumb and shocking but wouldn’t entertain the idea of penalizing it. If you still wish to say there could be liability for reputational damage, it should be explained within the historical context of the colonists who celebrated the Boston Tea Party, burned effigies of British officials and tarred and feathered collaborators.
DeleteWithin the context of exceptional reasons to curtail expression, fighting words and incitement require direct threat or imminent expectation of violence; in a similar fashion vandalism and arson meet or exceed those thresholds. Flag burning, even if perceived as a threat is too vague in both object and timeframe.
2. For the original textual meaning I agree with the Anonymous comment previously made. The “press” protects channels of distribution while “speech” protects symbolic expression; they are overlapping and supportive terms not a way to distinguish modes of communication.
I apologize for mischaracterizing your position as denial instead of criticism.
3. It doesn't seem intentional, but in my opinion referring to it as a danger rather than an ongoing abuse diminishes the necessary level of response.
Thank you for your engagement and your correction regarding the characterization of my position.
Delete1. You're right that a symbol is not the tangible entity it represents. Burning a flag with McDonald’s arches doesn’t harm McDonald’s property or personnel. But the legal question isn’t whether symbolic acts cause material harm—it’s whether they qualify as speech under the First Amendment. As I’ve argued, symbolic conduct like flag burning is not speech in the constitutional sense. If it were, then the First Amendment would have no need to separately protect “the press,” which is also a form of personal expression. The distinction between speech and press implies that not all expressive acts are speech, and thus not all are constitutionally protected.
The historical examples you cite—effigy burning, the Boston Tea Party—are powerful symbols of protest, but they were also acts of civil disobedience, not protected speech. The colonists didn’t claim legal immunity for those acts; they claimed moral justification. That distinction matters. The fact that symbolic protest has a long pedigree doesn’t mean it’s constitutionally shielded from regulation.
2. I appreciate your agreement with the textual point I raised. However, I would still argue that “speech” protects spoken verbal expression, while “press” protects written and distributed communication. They may overlap in purpose, but they are not interchangeable. If symbolic conduct were inherently protected as speech, then the Constitution would not need to distinguish between modes of communication. The fact that it does suggests that expression and speech are not synonymous, and symbolic acts like flag burning fall outside the scope of First Amendment speech protections.
3. My use of “danger” was not meant to minimize the reality of overreach, but to frame the constitutional argument in terms of principled limits. I fully agree that the misuse of symbolic speech doctrine to suppress dissent is a serious problem. But I would argue that the solution is not to expand constitutional categories beyond their textual bounds—it’s to enforce them rigorously and apply them with integrity. Protecting speech means protecting speech—not every expressive act that might carry a message.
1. If only speech and writing are protected then art would not be covered under the First Amendment and in large measure it is, including performance art with political messaging.
DeleteGranted our discussion has been about narrow legal arguments but Dr. Feser’s post and many other comments have been fully or mostly moral arguments.
2. We are talking past each other on this aspect, so I will drop it.
3. I guess we'll find out sooner rather than later everyone's integrity to basic constitutional principles, but at least some of the limits have already been cast aside. So tackling the rarely seen conduct of flag burning is a choice.
1. You're right that art—including performance art with political messaging—has received First Amendment protection in many cases. But that protection is not automatic or universal. Courts have extended speech protections to art when it conveys a clear communicative message and when the medium itself doesn’t violate other laws. That’s why, for example, nude performance art can be regulated under public decency laws even if it’s expressive.
DeleteMy position is that not all expressive conduct is speech, and the Constitution doesn’t use “expression” as a category—it uses “speech” and “press.” If symbolic conduct like flag burning is treated as speech, then the textual distinction collapses. The fact that some art is protected doesn’t mean all symbolic acts are constitutionally shielded. The legal system has carved out protections for certain forms of artistic expression, but that’s a matter of judicial interpretation, not textual necessity.
As for the moral dimension of the discussion, I agree that many comments—including Dr. Feser’s—are moral in nature. But my critique has been focused on the constitutional category of speech, not the moral legitimacy of protest. I’m not denying the expressive power of symbolic acts—I’m arguing that they don’t belong under the First Amendment’s speech clause.
2. I don’t think I’m talking past you—I’ve been engaging your points directly, especially your defense of symbolic conduct as protected expression. The disagreement isn’t due to miscommunication but to a fundamental difference in interpretive approach. You’re working from a broader, more contemporary understanding of expression under the First Amendment, while I’m arguing from a textual and categorical framework that distinguishes speech from conduct.
When I argue that symbolic acts like flag burning are not speech, I’m not ignoring your position—I’m challenging its legal foundation. That’s not talking past you; it’s addressing the premise head-on. If anything, the fact that we’ve both acknowledged the limits of incitement and fighting words shows we’re working from shared legal reference points, even if we draw different conclusions.
So I respect the decision to drop that aspect of the discussion, but I want to be clear: I’ve been responding to your claims directly, not sidestepping them.
3. If we allow symbolic acts to be treated as speech, then the boundaries of the First Amendment become increasingly porous. In a time when basic constitutional principles are under strain, I believe it’s more important than ever to clarify what the Constitution actually protects, rather than expanding its scope in response to political pressure or cultural shifts. That’s not appeasement—it’s fidelity to the text.
1. I disagree with your framing. First Amendment protection for art is presumed but it has heavier restrictions based on indecency or obscenity. In any event it takes us out purely textual classifications into expressive conduct as a legitimate category of protected speech. When the art has political messaging, such as political cartoons, it is treated in exactly the same manner as speech.
Delete3. Boundaries that shield the public from government abuse is a good thing, especially in a modern state with such a giant power imbalance. In David vs. Goliath is the lesson supposed to be that David didn't follow the expected rules of engagement?
I will note here that I am not claiming and have never claimed symbolic conduct should be immune from social consequences, only from government interference.
1. I understand your disagreement with my framing, but I’d argue that the existence of heavier restrictions on art—especially regarding obscenity and indecency—actually supports my point. Those restrictions exist because art is not treated identically to speech. It may be protected in many cases, but it’s not presumptively immune from regulation the way spoken or written political speech is. That distinction shows that expressive conduct is not automatically speech—it’s a separate category that courts have chosen to extend protections to, but not on textual grounds. Political cartoons, for example, are protected not because they are symbolic conduct, but because they are written and published communication, falling squarely under “press.”
Delete3. I agree that boundaries shielding the public from government abuse are essential, especially in a modern state with vast power disparities. But the lesson of David vs. Goliath isn’t that David ignored the rules—it’s that he used the right tools for the right battle. My argument is that constitutional clarity is one of those tools. Expanding the definition of “speech” to include all symbolic conduct may feel protective, but it risks weakening the very categories that make constitutional protections enforceable. Shielding symbolic conduct from government interference must be done within the bounds of what the Constitution actually protects, or else we risk trading principled limits for reactive overreach.
And I appreciate your clarification: you're not arguing for immunity from social consequences, only from government interference. That’s a fair distinction, and one I respect. My concern is simply that constitutional categories must remain disciplined, or they lose their power to constrain the state meaningfully.
1. You are claiming additional restrictions imply a totally different category after we’ve already discussed subcategories of verbal speech that have higher restrictions. The conclusion doesn’t follow from the premise.
DeleteSome intuitive challenges: If someone performs a sketch based on those same political cartoon features of caricature, extreme hyperbole and satire, does it become subject to government regulation simply because it is expressive conduct? Does a sculpture of the same visual image as a political cartoon lose protection because it can’t be printed or published?
3. I would argue David interpreted the rules in an unexpected, nontraditional way that gave him a fighting chance but still required great accuracy. I agree that broadened definitions might indirectly weaken other protections, but please list which ones are weakened by this specific expansion. In my opinion the First Amendment is a paramount right that functionally clarifies all the others, so even if its expansion does indirectly complicate things it is a worthwhile tradeoff.
You’re right that both spoken and written speech can be subject to heightened restrictions—defamation, incitement, obscenity, etc.—yet remain clearly within the category of “speech.” My point is that expressive conduct stands differently in kind, not merely in degree. Restrictions on verbal speech typically police content (e.g., threats or libel), whereas restrictions on expressive conduct regulate the act itself. The distinction is conceptual: speech is communication by words; expressive conduct is behavior that conveys meaning through action.
DeleteTo your intuitive examples: a live performance or sculpture that communicates a political message can, of course, enjoy First Amendment protection, but that protection is derivative of judicial doctrine, not of textual necessity. The Court’s willingness to treat nonverbal expression as “speech” has been grounded in a pragmatic philosophy of communication, not in the text of the First Amendment itself. That’s why such protection remains conditional and context-dependent. When the expressive medium involves conduct that also falls within regulable categories—nudity, property destruction, public safety—it is subject to regulation even if communicative. The line I’m drawing isn’t that symbolic or artistic acts can’t be protected, but that they are not inherently within the original constitutional category of “speech.”
In other words, the Constitution doesn’t prohibit Congress from extending protection to expressive conduct—it simply doesn’t require it. The textualist reading limits what the courts can constitutionalize, not what legislatures can permissibly safeguard.
You ask which protections are weakened by expanding “speech” to encompass all expression. The most significant erosion is conceptual coherence. Once “speech” includes all expressive behavior, its limits become arbitrary, resting on judicial preference rather than textual constraint. If burning a flag is “speech,” then so is burning a draft card, staging a nude protest, or spray-painting a slogan on private property. Courts then must invent balancing tests (O’Brien, Spence, etc.) to reconcile this expansion—tests that shift constitutional boundaries from the text to the judiciary. That shift concentrates interpretive power in the courts and dilutes the rule of law.
Moreover, by conflating expression with speech, we risk weakening the exceptional protection that verbal and printed discourse rightly enjoy. Speech and press are shielded almost absolutely because they are the indispensable vehicles of reasoned deliberation—the very essence of republican government. When every act is treated as “speech,” the state inevitably acquires greater discretion to regulate all forms of communication under the guise of managing conduct. The result is not more liberty, but a broader arena for bureaucratic intrusion.
David’s victory over Goliath came not from ignoring structure but from employing the right weapon within the contest’s rules. Likewise, constitutional fidelity is not cowardice—it’s the sling that guards liberty. The First Amendment is paramount precisely because it is principled, not elastic. To preserve that strength, we must keep its categories disciplined: speech as spoken or written communication; press as publication; assembly and petition as collective actions. Each serves its own irreplaceable function.
So while symbolic expression has moral and social value, its constitutional protection should be a matter of democratic decision, not judicial expansion. A textualist reading doesn’t impoverish liberty; it anchors it—preserving the integrity of those freedoms the Framers actually inscribed.
"If parents tolerated such expressions of insolence from their children, their authority would be undermined and the stability of the family threatened. For a country to tolerate public expressions of contempt for it such as flag burning tends to destabilize it in a similar way."
ReplyDeleteThe relationship of the US to its citizens is very much *not* analogous to a parent/child relationship. This is a democracy, the people have authority over the government, not the other way around. Freedom of speech is one way this relationship is maintained.
It's clear that the "post-liberal order" is profoundly un-American and must be resisted by any true patriot. The people that burn the flag are better Americans than those who would try to outlaw it.
Molly Ivins said this better: "I prefer someone who burns the flag and wraps themselves up in the Constitution over someone who burns the Constitution and then wraps themselves up in the flag"
DeletePS: thank you for keeping this forum open and letting contradictory views be expressed, that shows some free speech traits.
True, but to be a good citizen it is not necessary to burn the flag or burn the Constitution. I prefer a citizen who does neither.
DeleteThe "expressive act" of burning the flag can be reasonably taken to stand for the POV that you reject the entirety of America and what it stands for, including the Constitution.* I don't see why a person who rejects the whole kit and caboodle should be granted to remain here, subject to that Constitution and the rest of the order of American society, since they reject it: let them live somewhere else and oppose it from afar.
*While it is technically possible to burn the flag in protest of SOMETHING or other and not intend to be against the whole order that the flag symbolizes, the expressive act is incapable of specifying narrowly what something that is, and when you don't otherwise specify (i.e. through speech), the appropriate inference is that you intend not to object narrowly but broadcast, against the whole order. And even when you (sometimes) add words to your flag-burning, since photos and videos won't necessarily capture the words, your expressive act can be easily separated from the speech that clarifies, and you seem to be OK with that because of the means you chose. You can't just as easily stem the natural consequences of such separation if they occur. Prudentially, if you mean to protest a limited problem or injustice, you should limit yourself to a means that is sufficiently focused on that issue as to avoid inappropriate extension beyond what you mean. If you mean to reject the whole order, then perhaps you should separate yourself from that order. There is no reason in principle that the order itself should protect your attempts to overturn the order.
WCB
ReplyDeleteFlag burning! Grrrrrrrrr! Flag burning really hurts no one. Meanwhile Trum, JFK Jr et al are destroying medical research including gutting cancer cure research. That long term will harm more, real harm, than some clown burning a flag. Instead be angry at that. Grrrrrrrr! Angry!
WCB
Way to fling yourself flat before the Moloch of Despotism, Ed. By your reasoning, Moses ought to have marched back into Pharaoh’s palace, shackled himself, and kissed the lash—rather than listening to that deeper law which told him something was rotten, intolerable, and demanded resistance.
ReplyDeleteOthers have already made the point, but I’ll carve it again: we live in a democracy (though God knows it feels like a rented suit, ready to be yanked back at any moment). Dissent is not disorder; it is the oxygen of the democratic body. That’s precisely why dragging medieval philosophy into the present collapses under its own weight. The categories don’t fit. They were never meant to.
And yet, here are tons of Catholics, genuflecting before contradiction: Catholic, pro-life, but somehow at ease with the death penalty, with tossing abuelita into some swampy Bergen-Belsen. The hypocrisy drips from every syllable.
But then again—neither can your Pontiff untangle that mess. So perhaps I’m in good company, Ed, watching the whole edifice wobble under the strain of its own doublethink.
The argument at hand isn’t about silencing dissent or sanctifying despotism. It’s about interpreting the First Amendment according to its actual text. “Speech” and “press” are not poetic placeholders for “expression.” They are specific, historically grounded categories of communication. To insist that symbolic conduct—however heartfelt or provocative—automatically qualifies as “speech” is to rewrite the Constitution by sentiment rather than by syntax.
DeleteMoses didn’t burn a flag; he spoke truth to power. And that speech, verbal and unmistakable, is precisely what the First Amendment protects. Dissent is vital—but dissent expressed through conduct, rather than words, falls into a different legal category. That’s not medieval; it’s meticulous.
As for Catholic contradictions, they’re beside the point. The Constitution isn’t a catechism, and this discussion isn’t a theological tribunal. If the edifice wobbles, let it wobble under the weight of argument, not invective. But if we’re to preserve the integrity of democratic discourse, we must distinguish between speech and spectacle, between protest and performance, between constitutional protection and cultural provocation.
The deeper law you invoke may well stir the soul—but the written law governs the republic. Let’s not conflate the two.
WCB
DeleteThe conservative Supreme Court has interpreted the 1st amendment to claim rich oligarchs can contribute very large amounts of money to political candidates. Citizen's United. Despite the reasons that is a very bad idea. But in Georgia, it is illegal to give a bottle of water to a voter standing in a long line at a voting station.
WCB
I have perhaps as much dissatisfaction with the result of the SC's "Citizen's United" decision in giving wealthy people a lot of room for swaying opinion through spending money on advertising (& other means). I don't automatically think this converts into the conclusion that their decision was made wrongly.
DeleteThe heart of the matter is that although wealth has a power to speak loudly, the decision also protects the voice of less wealthy people who unite into a group (e.g. a political action group) in order to magnify their individual voices by that union, either through the collected money they spend on advertising, or directly through their format as a group making a statement. That is, part of the point of freedom of assembly is to be free to have an impact by assembly. And necessarily those with wealth at their disposal tend to have access to the media of communications. But it is equally true that those who control the corporations that own the media of communications have the ability to affect the use of those media. So, how do you clamp down on wealthy individuals who can spend money to be heard, without clamping down on groups and associations who spend money to be heard? And why would you clamp down on wealthy individuals but not media corporations?
For every Koch on the right there is a Soros on the left. It is
I work for a rural hospital. This is he how he is hurting his own supporters
ReplyDeletehttps://www.politico.com/news/2025/10/02/trump-h1b-visa-fee-hospitals-doctors-red-states-00592194
I suspect if the budding dictator were to announce by an executive order the re-establishment of chattel slavery the comment section here would remain the same. Maybe 4 out of 20 people with moral clarity, the rest with a variety of justifications and some mild reproach ( allow them to become indentured servants with good behavior - you know, for the sake of social order). However, most will make exacting arguments on why, for example, burning the flag in disgust at this repeat of human degradation lacks discernment and should be condemned.
ReplyDeleteShameful and ridiculous.
Everyday,
ReplyDeleteI find myself grateful, for Prof's calmly put forth arguments, with a measured and sobre tone. It's a standard I try to aspire to. To cover such controversial topics like Flag Burning and Free Speech with gravitas requires a certain ability. I completely agree with Prof on this.
For some reason Matt Walsh's abhorrent and rage baiting commentary keeps appearing on the feed, sadly that commentary often happens in the name of Catholicism, he has endorsed the hiroshima and Nagasaki bombings and wonders with the kind of consequentialist reasoning he has used to defend it if he has actually read catholic teaching.
And that makes me all the more grateful for Prof's commentary.
Keep up the good work.
For those who have argued that a citizen has no obligations to the polity of which he is part. Socrates in Crito argues the opposite. So patriotism is not a medieval invention, nor a particularly Catholic idea, but has been considered a virtue across time and all human cultures. A good example of natural law.
ReplyDeletehttps://classics.mit.edu/Plato/crito.html
https://truthout.org/articles/trump-shares-meme-calling-dems-the-party-of-hate-evil-and-satan/
ReplyDeleteThe man is not well.
Anonymous@October 3, 2025 at 2:32 PM
DeleteTouch grass. Stay off the internet for a while. Play some records.
The topic is whether it is morally or constitutionally permissible to prohibit flag burning.
TDS and Covid vaccines are a toxic mixture ;-)
Thankfully, our pious King has declared - contra the constitution - to all Law enforcement that this act will now land you in jail for one year per a post on Truth Social. Providing intellectual backing for this chicanery is apparently a high calling for Christians in these times.
ReplyDeleteAnonymous@October 4, 2025 at 1:15 AM
DeleteMaybe it hasn't occurred to you, but maybe the EO is a strategy to get the SCOTUS to re-examine the Texas vs Johnson decision. The administrations claim is that since it is constitutional for the government to legislate against "incitement to violence" and flag burning incites violence then it is legal to legislate against it. Here is a summary:
https://www.scotusblog.com/2025/08/the-supreme-court-and-flag-burning-an-explainer/
Unless one hasn't been paying attention, just because an EO is issued does not mean that it cannot be challenged. 251 of the current administrations EOs have been challenged in 2025 of which 61 have been decided.
So don't panic. Have patience.
This is what Trump's ICE does to elderly peaceful protestors in our authoritarian society.
ReplyDeletehttps://www.oregonlive.com/politics/2025/10/federal-agents-knock-down-elderly-couple-during-portland-protest.html
An interesting take on self absorbed lefty boomers:
Deletehttps://x.com/L0m3z/status/1974509909199945886
I am privileged to reside where I choose, given willingness to put up with the shenanigans of neighbors. That is, loosely, freedom of association, even when one does not freely associate with morons, whose morality/behavior does not match one's own. In that regard, panic and patience have little to no application. One may either tolerate one's environment, or, one may move. That is an extent of freedom. Sure.
ReplyDeleteI am privileged to reside where I choose, given willingness to put up with the shenanigans of neighbors. That is, loosely, freedom of association, even when one does not freely associate with morons, whose morality/behavior does not match one's own.
DeleteInterestingly, I view our freedom in this respect somewhat limited: I have the freedom to move to a certain house (if I can afford it, which is itself a complicated limitation but mainly not a specifically ideological one). But I and a group of like-minded don't have the freedom to create a neighborhood of those who have strong 2A feelings, or Italian-Americans, or Jews, etc: we can't EXCLUDE people on grounds we might want to. Simply moving to some other neighborhood doesn't (can't) achieve it. And in some cases those criteria are important to our lives, wherein the loss of that seriously crimps our personal fullness of life. So, you're including "given willingness to put up with the shenanigans of neighbors" is granting a notable limitation, not just a mere trifle. (As an example, In Iran the norm would be to view allowing Christians public worship severely interferes with their wholesome lives, and it is illegal.) It is possible that the limitation indicated is worth the rest of the indicated freedoms that seem to be attached to that. But just that means that its worth trading some freedoms for others, not that there's no tradeoff.
This was a thought provoking post, Ed. I agree on a couple of your points--that a ban on flag burning could accord with natural law (with exceptions allowed in cases such as the one you noted) and that Trump's executive order is more limited so that it might not conflict with SCOTUS precedent (though SCOTUS may rule otherwise). Whether the SCOTUS decision allowing flag burning was the correct interpretation of the first amendment is a close call and reasonable people could disagree on it. I would say that the few flag burners in the 1980s did not seem to be as open to inciting violence against government law and order as the flag burners are nowadays.
ReplyDeleteThe pious King is now calling for the jailing of a mayor and governor, further dialing up the military specifically against cities that did not vote for him, and all around priming the country for mass violence against his political opponents. Yet Christian intellectuals are here splitting hairs and carrying water for his unconstitutional declarations about flag burning and calling for him to put down protests harshly.
ReplyDeleteThankfully, there are Christians not playing semantic games in the midst of tyranny. May the Priests and Pastors getting pepper sprayed in Chicago and those elsewhere calling out this regime continue to serve as better examples of the word in action.
Blessed be the peacemakers.
DeleteGlad it’s a joke for you. Blessed be the Venezuelan that won so he can continue to fume about the Black man receiving something he didn’t.
DeleteSorry.
Delete"Blessed are the peacemakers, for they will be called children of God."