Flags, Free Speech, and Property Rights
By David Henderson
Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It’s good reasoning, and there’s nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don’t care how much you’re exercising your right to free expression. Free expression does not guarantee you the right to other people’s property any more than it guarantees you a working larynx. But if you burn your flag, you’re simply exercising your right to use your property as you wish. It’s a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.
UPDATE: I just noticed Professor Volokh’s and Professor Somin’s responses. While I appreciate Professor Somin’s attempt to bail me out, I do think that Professor Volokh correctly saw what I was getting at and did give me an important lesson in constitutional history. Touche.