Some Economics of Flag Burning and Jimi Hendrix
President-elect Donald Trump caused consternation three weeks after his electoral upset when he tweeted that someone who burns the American flag should be imprisoned for a year or lose his citizenship. Constitutional law scholars have written much about flag burning before and since the Supreme Court’s 5-4 decision in 1989 in Texas v. Johnson finding that the First Amendment protects such activity. President-elect Trump’s comments will probably renew debate and legal scholarship over whether the Court’s decision was properly decided, whether there is any regulation of flag burning that could survive constitutional scrutiny, and, if not, whether the United States should amend its Constitution to empower Congress to punish desecration of the flag. My purpose is not to wade into those controversies, but rather to explain an economic rationale for why this particular tempest illustrates why the Court should, as a general rule, interpret the First Amendment to protect speech to a greater extent than conduct. Virtually every rule has exceptions. My focus here concerns the general rule that words tend to be clearer than actions.
My argument is relative, not absolutist. I am not arguing either that the First Amendment absolutely protects flag burning or that it absolutely does not do so. Rather, I am arguing that, as a general rule, articulate speech cannot receive less protection under the First Amendment than conduct—such as flag burning—receives if we indeed believe that the purpose of the First Amendment is to protect and promote the communication of ideas. Precise communication is more valuable than ambiguous communication. If a citizen chooses to express an idea to others in a manner that is prone to ambiguity, he should not be so insulated from possible regulation as if he clearly conveyed that idea to its intended recipient.
J. Gregory Sidak, Some Economics of Flag Burning and Jimi Hendrix, 1 Criterion J. on Innovation 563 (2016).