Rewriting the ‘Star Spangled Banner’

The Supreme Court has authored many, many stupid opinions.  Perhaps the stupidest line in Supreme Court history, however, came from Justice Anthony Kennedy’s concurrence in Texas v. Johnson (1989).  That case invalidated 48 state laws prohibiting the burning of the American flag, as well as a federal law.  Kennedy explained the Court’s position: “It is poignant but fundamental that the flag protects those who hold it in contempt.” 

Well, not so much.  The flag doesn’t protect us from paying our taxes if we disagree with government policy; the flag doesn’t protect us from urinating in public.  Burning the flag is a behavior, not a form of speech.  And there are many forms of behavior that express viewpoints that are simply out of bounds.  It is interesting that while it is well accepted that there is no right to secede from the federal government, burning the flag – the ultimate repudiation of American sovereignty – is a hallmark of liberal “free speech.”  (more…)