THOUGHTCRIME Ep. 96 — The Great Flag Burning Debate

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Okay, everybody, welcome.

It is Thought Crime Thursday.

I'm really excited for this Thought Crime because I'm going to watch our panel debate.

I'm going to chime in a little bit because it's going to be about topics where one topic in particular, I'm not really sure where I fall.

We have Jack, we have Blake, we have Tyler, a lot to cover.

Of course, the biggest event in the history of Western civilization, the biggest event since the resurrection.

Taylor Swift is now engaged to Travis Kelsey.

We will get to that, obviously, bigger than the American founding, the Emancipation Proclamation,

storming Normandy Beach, and honestly, the biggest thing ever.

So, but instead, what we're going to do is we're going to debate flag burning.

From what I understand, President Trump signed a executive order saying that flag burning shall be illegal based on the laws.

Jack, why don't you go through just the facts of it and then state your position?

Because Jack, you've been really going all in on this.

Yeah, no, thanks, Charlie.

And so the flag burning EO, the way that it's been reported on has been, you know, sort of...

I would say sort of facetious and deceptive because what's really interesting about the flag-burning EO

is it's actually an executive order about the protection of the American flag, but it cites, for example, the Supreme Court ruling essentially of protecting the flag burning act itself, which goes all the way back to the storied American founding years of 1989.

So really a long-standing American tradition of the protection of flag burning.

Yeah, it's not at all.

And

what the EO actually does is

it allows for the prosecution of people who burn the flag with intent to incite or if there is imminent criminal action associated with the burning of the American flag?

And then also prioritizes that if you're, say, burning a flag outside the White House in a public park, which happened, I think, the day of or the day after this EO was signed in Lafayette Square Park, right there on the north side of the White House, where there was a guy who set it on fire.

And in fact, he was charged, but he was charged with setting a fire in a public park.

So the interesting thing about this EO is it doesn't actually

ban the burning of flags.

It does so when they claim there is an intent to incite imminent violence.

So it's really covering this, you know, public areas, these riots.

They talk about the LA riots in the EO and the fact that there were foreign nationals burning our flag in our own cities and no one was even arresting them or doing anything about this.

And the fact of the matter that we should protect the flag based on the fact on the basis that national origin is in fact a protected class in this country under existing law.

And American national origin is an example of that.

Therefore,

using the language of the left basically, when they say it's a hate crime to burn, say, a trans flag or a pride flag, well, they're saying that burning the American flag is an act of hate against people who are from America, which is exactly true.

And so the EO itself, just to summarize, doesn't actually ban flag burning.

I would go a step further, though, personally, and say that yes, we should ban flag burning, and it's completely constitutional.

Blake, your reply, dive into it.

The messier the better.

Yeah, yeah.

So he is correct.

The constitutional precedent that you can't ban flag burning is relatively recent.

It's Texas v.

Johnson.

I think it was in 1989.

I will note,

Justice Anson and Scalia was in the majority on that case.

It actually is a little unusual because Scalia was in the majority.

And then, like, the main dissent was from Justice John Paul Stevens, who was a left-wing member of the court, but had a very strong opinion that actually banning flag burning was completely fine for basically powerful symbolic reasons.

I think he was the oldest guy on the court, and he just had very strong feelings about the flag.

And so, I can understand

how

that does inspire strong feelings from people.

My take, I'm basically, I'm a free speech absolutist.

I think

the vast majority of things that can be interpreted as speech should be allowed to be interpreted as speech.

And we should not go around saying that means of expressing yourself are

criminal acts, not the least because I think we already know the direction that's headed, which is, I mean, right, obviously across the U.S., we have decided that if you burn the real national flag, the gay flag, you go to jail.

Or in the UK right now,

there's a guy who burned a Quran outside an embassy.

He got prosecuted and fined.

I think there was even someone somewhere burned a Quran and got stabbed.

And then they were basically

indicted for inciting a stabbing of themselves.

I can't remember where that was, though.

And like, that's the direction

we're headed is, like, if we're going to have it be okay to ban like symbolic gestures, we're headed in the direction where where the symbols, what we're going to ban is blasphemy.

And what can you blaspheme against in the 21st century?

You can blaspheme against gay stuff.

You can blaspheme against Islam.

You can blaspheme against a lot of like modern dogmas that are themselves quite new.

And I would say in modern America, our best defense against that is very, very strong, robust free speech laws across the board.

And frankly, I think it was a triumph.

I think America was at a great peak when our attitude of free speech was basically anything goes.

And yeah, that wasn't always the case.

But I think that is a case where the wider and wider our free speech protections got, the better America was actually getting as a country.

Because, yeah, we weren't always super robust on it.

I mean, before the Civil War, you had a lot of restrictions on speech related to slavery and such.

I don't think that was a good thing.

So

also

you know, we've had laws against obscenity.

We've had, we've had actual blasphemy laws in the states

in the past.

We've had,

you know, and, and, you know, prior to this, many states had, uh, had restrictions against burning the flag.

Oh, okay.

So, sorry, sorry, Tyler, go ahead.

So, real quick, one thing that Jack brought up that I thought was really interesting.

Someone made the point that

you know, burning a flag with this new EO in front of federal employee is part of that whole incitement act.

I just heard someone talking about that, I think, yesterday, which I think is really, you know, really moving because I generally agree with Blake that let people do whatever they want to do, but that whole concept of people that are mentally ill using the flag to try to

invoke some kind of violence or incite some kind of violence.

is generally kind of the MO that we've seen from these people.

So like going in front of the White House and lighting stuff on fire is probably not, you know, all mentally there and probably not good for society.

And I think that that's part of the conversation.

And so, you know, I've been kind of more pulled towards, hey, you know, most of the people who are doing these acts are actually going and like putting people in harm's way, like again, federal employees, people who are, you know, just trying to do their jobs on a day-to-day basis.

They're showing up, you know, actually violently and loudly saying how much they hate america going in front of america so i've been kind of more pulled towards that side of things where it's like yeah we shouldn't this is probably isn't healthy for society to allow this to go on especially when it puts people in harm's way well but i think that

area that we're showing

is

i was gonna add that there's ahead i do have a question no i was just gonna add that and before i before i you know respond to blake's uh facile libertarian uh argument that um it's it that area where we're showing those images um that's a tourist area.

It's one of the most high-traffic tourist areas in Washington, D.C.

I've had my kids in that area for like multiple times just in the last couple of weeks.

So, I mean, people are coming there to set things on fire.

Plus, not only that, I mean, we've also seen in Washington, D.C.

and New York, people setting themselves on fire as forms of protest.

So it definitely leads to that type of Aaron Bushnell, I think, was in New York.

And there was another guy who set himself on fire in D.C.

It didn't get as much coverage because I don't think it was on video.

But, you know,

there's obvious harm to others or, you know, potential for harm.

You can't just go around setting fires in cities to begin with.

Well, first of all, it's obviously a good thing if it inspires left-wingers to set themselves on fire.

But in addition,

no, I think the objection that Tyler brought up actually gets exactly at how rapidly and immediately this starts escalating, where, okay, burning a flag is inciting violence against federal employees.

How?

How?

That's not.

Saying we should kill federal employees is inciting violence against federal employees.

Saying, let's go over to that federal employee and shoot him in the head.

That's inciting violence against federal employees.

Saying like you burned a flag, so that's a threat against the

free speech absolutist.

The three million officers.

You just said you were a free speech absolutist.

Yeah, I am a free speech absolutist.

Well, yeah, so would you say that's protected or not?

Well, no, because we have a long-established thing that you can't literally just go and do a criminal action and call that free speech.

Like, conspiracy is not covered by freedom of speech.

Like,

conspiracy is not covered by freedom of speech.

Actually, like, going and committing crimes is not covered by freedom of speech.

But people are generally surprised by how far you can go in terms of advocating bad things and still not run afoul of freedom of speech laws.

You pretty much can say, like, I think we should overthrow the federal government and it doesn't violate freedom of speech under rules.

What does that mean?

Conspiracy statute, of course, is

you have to take some kind of action in furtherance of the conspiracy.

So, if you and I are texting and we make a joke about that, it's just a joke.

But within the fact that we then take an act to this came up in like the Whitmer plot, for example.

They were talking about things and then they went and got into this van and of course there were like federal agents all over it.

But then it was the act of driving around Whitmer's

residence and her area.

They claimed that was a surveillance route.

So that was the act in furtherance of it.

So the speech itself wouldn't have been enough to trigger the conspiracy statute.

It was the actual, you know, act towards the conspiracy.

And similarly with incitement.

So

yeah, finish the thought, Blake.

Then I have a question.

Go ahead.

Well, so I was saying, similarly with incitement, like to actually reach incitement, traditionally you need multiple elements that would point towards directly and immediately doing a criminal act.

So you can't even say, like, you could pretty much say, we should kill federal employees.

And that's actually fine, actually,

legally.

It's not good to do, of course.

But if you're saying we should go and kill, you like have a specific person or a specific time or a specific place you need usually two of those things so once you have those you're advocating a specific criminal act and then you're directly inciting a criminal act but just burning a flag who who are you specifically calling to target

there's nothing there and that's again how it immediately can becomes abusable where oh you don't like Islam so you burn a Quran oh well you have to go to jail because actually you're inciting violence against Muslims or

you've said this a couple times now and you're acting as if people wouldn't go to jail or face repercussions for those things when we've seen multiple instances of that.

And they should.

You're like, oh, we can't set the precedent.

We can't set the precedent, but we already live in the country where we have these precedents.

So we're going to make that stronger.

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J6,

they threw people away in jail for waving flags.

Yeah, I think that's bad.

I don't want to loosen our constitutional norms so that that we can make it easier to send people to jail for that.

But it's not a norm.

Like, here you go again, saying it's a constitutional norm when we've already established this has only been around since 1989.

Like this is, so here's a great example.

Roe v.

Wade was, what, 1976 or 1973?

1993.

Something like that.

So that law, that ruling was more of a quote-unquote constitutional norm, the Roe v.

Wade ruling, which created this right to abortion that's nowhere in the Constitution.

And then year, and conservatives fought against that for 50 years because it's obviously not in the Constitution, and it's obviously an immoral act, and it's obviously wrong.

Then you have this flag-burning protection, which was just read into the Constitution by a bunch of libs.

And yeah, okay, I got Scalia to go along.

Who cares?

He can still be wrong, even if he's Anthony and Scalia.

Like that argument is totally facile.

It doesn't carry any weight with me.

He's wrong.

It was made

added to the Constitution in 1989.

You can't establish.

It's not a history of freedom of speech in the United States.

We didn't just

basically.

It is speech.

It is on its face, not speech.

Expression

is a physical act of burning.

It's not expressed speech.

If you want to take it literally, then, like, things that you can't imagine anything that would fall under the banner of freedom of speech that isn't literally a speech.

I don't think that burning a flag is speech.

I don't think that pornography is speech.

I don't think that any of these things are speech.

Okay, let's get really literal then.

Anything you publish on the internet, that's not speech.

You didn't speak it.

Writing is speech.

No.

Oh, but this press.

It doesn't say writing speech.

And writing and spoken word is speech.

That's the right thing to do in speech and spoken word.

Like from a press.

If you want to get really literal, it's only on the internet.

That's not the press.

But we don't have a right to publish in this country.

Actually, you do.

We've repeatedly have rulings to that effect.

That's what Citizens United was about, that they couldn't restrict the right to publish a book criticizing Hillary Clinton.

You don't have a right to force, and I'm talking about like online.

You don't have a right to force a company to keep something online.

No, of course you don't.

Just like you don't have the right to force anyone to say something, but you absolutely have the right to yourself publish something online.

We

thought we did.

We're arguing we don't because you're being super literal about those things.

Yeah, no, I'm not really being super literal.

I'm saying that it is

complete nonsense to claim that burning a flag is speech.

It's just on its face nonsense.

It's ridiculous.

Well, so let me ask.

So this invites other questions.

So,

Jack, do you have the right

to

pray, let's just say silently

express

a Catholic ceremony.

Is that speech or is that expression?

And do you have a right to that?

Well, you have a right to the free exercise of religion, which is separate from the right for speech.

Right.

Well, okay, so they're both in the First Amendment, but you are correct.

One is the Establishment Clause and one is the Free Expression Clause, right?

So

it

technically

says speech.

The word expression is not in the Constitution.

Right, correct.

But the essence, so Blake is right.

You're being a little bit woodenly here right

so just just no i'm very careful about this charlie because this is how marxists get in and this is how they sneak abortion and all these other things into the constitution that just aren't there i think we need to be really careful if we're adding words right so

okay you're right so expression is not in there but exercise is just so we're clear right so and abridging freedom of speech or of the press or the right of people to peaceably to assemble and so there are things beyond just the spoken word.

So I'm just

not.

I'm trying to make up my mind here.

I want to note something very important.

It specifically says peaceable.

The Founding Fathers would not have

political expression existed in the time of the Founding Fathers.

People were tarred and feathered.

There was the burning of effigies of King George III.

They had just gone through all of this time and time at the Boston Tea Party.

So apparently we shouldn't be able to banish that.

We should be able to ban that.

That's a lot more violent.

But the founding fathers, in their wisdom, sought not to give those the same level of political protection as they did for speech.

How do you know that?

I think they would have probably been pretty pro-burning.

Because I've read the Constitution.

It's right there.

I can get you a copy.

Oh, did they say that we wrote it that way to make sure you can't burn things in effigy anymore?

Because I know that during that era, they still burned people in effigy.

They burned John Jay in the future.

I'm not saying it brought back Jay.

So

you're beleaguering the point.

What I'm saying is they didn't give it this.

They didn't afford it the same protection as speech.

Just because it's not in there doesn't mean.

So, for example, like putting on a play is obviously an example of expression plus speech plus action, right?

So, I'm not saying that it's illegal just because it's not there, I'm just saying it doesn't have the same constitutional protection, which would mean that it's up to the states.

And I would say this is exactly what was found in Dobbs.

And I would say this, Blake: the burning of an effigy has far less

societal impact than the entire concept of the market.

Hold on, hold on.

You know that doesn't make any sense.

You said it was okay to ban burning a flag because it could incite violence against federal employees.

Burning an effigy of a specific person vastly more incites violence against a specific target than burning a flag.

You know that's

a

if there's conspiracy like Jack brought this up.

Well, I think that's true, but

Tyler, I think you're making a different point, right?

That's true.

Obviously, that's obviously true.

But Tyler, you're making a different point about the national implications right the the total national implications of of allowing a country to to that down the slippery slope of of being anti-american anti-team america i mean look i'm wearing my usa sweater just for this debate which is just right now which is that an individual is far more protected than if you allow a country to go down the this the slippery slope of having the entire brand for what you're doing just completely burned on the sidewalk right in front of the White House.

That shouldn't be allowed.

Most people feel, I mean, you watch that happen.

Most normal people look at that and they go, this is not something that stands up for our American values, all of those things.

You have people who attack individuals.

Again, effigies, I think, are a totally different thing.

So let me ask you a question.

Yeah.

So, Jack, should it be legal to burn Mother Mary publicly?

No.

Why?

That's free exercise.

Should it be legal to.

Hold on, hold on.

No, no, no, no, no, no.

Because you're violating.

It's legal to burn Quran.

Hold on, hold on, please.

Guys, I literally, should it be legal to burn the Quran?

Should it be legal to burn the Quran?

No.

Okay.

Again,

because of the freedom of religion clause.

Right, but

so we're not allowed to burn other people's texts because of freedom of religion?

Well,

I guess

I'm, you know, if you have a personal copy, I think that's different than what we're talking about here.

And

I certainly wouldn't necessarily say that it's the same as burning a flag.

Well, no, hold on.

It's important because what you're getting at is you're getting back towards the desecration of symbols that have reverence towards a people, right?

That's the whole idea of the flag, right?

Is that the flag is holy.

It should be separate.

That's why we have flag rules.

That's why it shouldn't hit the ground.

That's why you retire it a certain way.

That's why you fold it a certain way, right?

That's the essence of all this, that the flag is more than just cloth that it represents.

It's a civic symbol that unites all.

But so

I guess the question is that

would you limit it that or would you extrapolate that kind of limitation towards any other places of

reverential significance?

Or is it just the flag

for example?

What I am saying, I'm just saying that, you know, given the reading of the Constitution versus, you know, sort of my own personal beliefs,

is that that power is left up to the states.

Okay.

So

let me ask a different question then to Blake, which would be a tougher question.

It would be a question I'm curious.

Blake, do you think freedom of expression or whatever, freedom of speech or exercise thereof, is it a means or is it an end?

Is the end free speech or is free speech to lead us towards something?

I think it's both.

I think it is a valid means in the sense that I think freedom of speech emerged from a cyclical period that we went through for hundreds of years, not so much in America, but especially in Europe, in England, the country that gave birth to us, where you had cyclical patterns of ideologically driven violence against people based on their religious beliefs, based on their political beliefs, in which huge numbers of people died.

Like a higher percentage of Britain died in the English English Civil War than died in our own Civil War, and that was a very ideological war.

And the norms of freedom of speech developed after that, as essentially, this is our proxy to make sure we don't kill each other.

And the way you do that is you have a much stronger right to express yourself.

And the desire to crack down on what people are saying is always a prelude to the desire to do other things to marked ideological enemies.

But I also think it's a valid end in and of itself because I think what freedom of speech is recognizing, like what it's driving from, is it's very tyrannical to basically assert control over another person's conscience, which you're effectively doing when you're saying you are not allowed to make this form, to basically state this view or to make this form of expression.

And yeah, I'll acknowledge that burning the flag is probably at like the edgemost case because it is,

you know, it's a physical act as opposed to stating some sort of religious idea or political idea directly.

But I think it's an important edge case, and I think it's actually valid to defend that edge case.

And I think we're already seeing the issues with that, which is once you're saying it's, you know, it's okay to ban this form of symbolic expression, let's ban other forms of symbolic expression.

I think it's good to be in a country where we can burn the Quran, which they can't do in European countries.

Let me take Charlie's question one step further.

Do you agree with the burning of the U.S.

Constitution?

do you think the u.s constitution should be it should be legal to burn the u.s constitution in front of the white house yeah

on the steps of the capital subject to i i think people are kind of mixing it up when they say oh well there's arson laws yeah we already have arson laws you can't do something manifestly unsafe in the same way that you can't blockade traffic and call it speech but if you have the right to any place where you have the right to burn anything it should include by extension the right to yeah burn the flag, burn the Constitution, burn any book.

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The reason why this topic is so good is that

it is the meeting point, the convergence of a rights-based legal regime and society and a duty and obligation-based society.

And that's why this issue is so good, because it hits together of, wait, do we have any sort of sacrosanct objects or duty to something bigger than ourselves?

And you kind of combine all these things together.

It makes it a very interesting issue.

Tyler, you were saying something.

No, and that's actually right in line with where my thought process was, was you have to have some of these symbolic elements within the society to be able to establish culture and for people to largely respect the culture.

I mean, we talk about Russian culture all the time during this Russian-Ukrainian conflict.

We talk about other places oftentimes.

There are things that are just not allowed to be touched in other places that allow for the establishment of a culture.

The sanctity of

the U.S.

Constitution of the American flag should be something that as a culture, you can't touch.

Otherwise, there's no way to protect all of the other things.

And, you know, I'll kind of, and again, I don't know if this is the point Charlie was making with provoking with some of this was if you allow for those things to happen, it makes it so much easier for, especially if you're letting in millions of immigrants into this country, it makes it so much easier just to tread all over what makes this country culturally relevant.

And that's a real problem, I think, for a lot of people.

Well, well, Tyler, just to follow up on that, like you're talking about things that just don't work in a country that has has mass migration like we have, right?

So when we were at the, it's 1989 anymore, right?

So the things that like the tail end of sort of like the boomer counterculture movement right before they all started, you know, moving into office themselves was this ruling.

And

the country is vastly different than it was 40 years ago.

The country is vastly more diverse than it was 40 years ago.

We have a problem in this country right now because we have these massive multinational mini-nation enclaves all throughout the country.

We have a situation where a guy who just became the, you know, just became an American citizen is about to be the mayor of New York.

You have people like Omar Fatah, who was running in,

gosh, in Minneapolis, where he just had this horrific killing.

I don't know what his current status is because they pulled his endorsement or whatever.

But we're in in this situation where the reason that we are seeing the rise of populist nationalism is because we are having this very directly rally around the nation moment.

And in a rally around the nation moment, you must protect your most sacred object to your nation.

That's why when I talk about this, like,

you know, would I support this ban or this protection or that ban?

You know, the reason that I come down for a federal ban on flag burning is specifically specifically that, because we need to have sort of the one symbol to rule us all.

And it's that.

And then, you know, you know, Blake just comes out here simping for commies hardcore, like, please, please let the commies burn our flag.

It's like, why are conservatives so obsessed with helping our enemies to be able to conduct their means?

Only radical communists want to do that.

But it's like people who support this just want to lose.

They just want to lose.

Guess what?

Well,

this is a legitimate question.

Like, I have a question for you, actually.

It's a legitimate question.

And I don't know if this is true or not.

But in the Vatican, would you get thrown in jail for burning

an effigy of the Mother of Mary?

No idea.

I don't know.

Does the Vatican even have a jail?

It's not very big, I imagine.

I'm sure they do.

I mean, I hope so.

I'd have to check

if they would not put up with it.

Probably not, but the Vatican is also a lot of people.

That's what I'm saying.

So the Catholics.

Yeah, but they have some symbols that are in the Vatican's a theocracy.

Yeah, but the Vatican is like the Vatican is like, with all due respect, the Vatican is a fake country.

It's like a nominal country to preserve the Catholic Church as an institution

and it acknowledges because they used to have a larger state.

We don't need to get into all these things.

The more provocative thing that what Jack is arguing for is the same sort of speech codes of blasphemy protections that Saudi Arabia has for the Prophet Muhammad.

And that, I mean, that,

Blake, am I wrong by say that?

And that's not even a criticism.

I think that's what people, I think if you look at the map of, like, yeah, it's true.

Most countries ban desecrations of their flags.

America isn't most countries.

Historically, America has been way better than most other countries, especially on speech.

I think I was always very proud of the fact I would have this thought, you know, when I was in high school and college that, like, I think it's good that in America, we kind of consider it almost unthinkable that we would have 30 arrests per day to have like the police show up because like oh you said a thing on facebook that wasn't very nice and it was incitement we're gonna flip incitation to you and i think frankly the flag part folds directly into this this general norm that in america like

you just have this blanket ability to say what you want and express yourself the way you want and the more ways you the more excuses you give the government that they can use to justify suppressing it the more ways they have to put their thumb on the scale, which is why I brought up the part about incitement.

No, finish your thought on incitement.

So it's like, again, it's like

when you get, when you allow the government to have more ways that they can justify cutting down on speech, such as that it's incitement of violence, you're giving more ways that you can curtail what Americans are allowed to think.

And that's kind of, I think, what they already do with, like, for example, you know, you can't burn the gay flag.

They're like, well, it's really,

it's inciting hate against this community.

So it's not really speech.

It's inciting hate.

That's totally different.

And I think we have to reject that point of view.

We have to say,

what counts as violence?

Violence counts as violence.

So is pornography speech?

Well, I think we have a much more robust tradition of being able to separate just obscene behavior from expression.

Burning a flag is pretty clearly.

And that's medical tradition.

Yet the Supreme Court is called

that porn speech.

Well, so for example, freedom of speech doesn't protect you from fraud.

Like, you can't defraud somebody and say that it's freedom of speech.

Our freedom of speech protections have always been the most maximalist, the most intense on things that are direct political expression, because that's clearly what this is derived from.

Like, that's clearly what the First Amendment is going for with also the freedom of expression, freedom of assembly, freedom of petition.

These are all political rights.

And so, yeah, burning a flag is a political act.

And whereas like pornography, that's like a commercial act for the most part.

And we have a pretty robust ability of separating those two things.

And I think you have other ways of prosecuting it too.

Like paying somebody to have sex with you is probably a prostitution violation.

And I don't know why we don't prosecute it that way if you happen to put it on camera.

But to like relate that to a very directly political act, like burning the flag, I don't think the equivalence holds.

Yeah, but isn't it political to be a turncoat against your country?

Yeah, but treason, like a turncoat against your country, that's why we actually define treason in the Constitution the way isn't it a treasonous act, though, to burn the American flag?

I don't, I don't think so.

That's actually why we define the Constitution so strictly in the Constitution.

Because in England, before, you know, in the English Revolution, which preceded our own, we saw this where they were charging people with treason for things like that, where they're like, oh, well, we think you're undermining the state, so that's treason.

And so that's why the Constitution says it shall only consist of levying war against the United States or adhering to its enemies, giving them aid and comfort, which adhering to the enemies, obviously that's more loose, but I think it's designed to capture like literally defecting to another country, providing them with intelligence, providing them material support in a conflict.

And you need to get some witnesses to it.

I guess that's why I brought up the burning of the U.S.

Constitution.

So

there's a clear difference between,

you know, burning the effigy of a tyrant versus burning the U.S.

Constitution or something that represents the U.S.

Constitution and wanting to move towards

more towards tyranny.

I mean, most of the people, I mean, wouldn't you agree that are engaging in the anti-American rhetoric are more along the communist,

Marxist line of thinking that are actually moving us away from what the Constitution represents?

I guess that's where I have the biggest problem.

100%.

This is totally

the founders' intent here.

We're so far beyond what the founding fathers would have recognized.

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Let me try to synthesize.

So both sides are making great points.

This is why it's hard.

If Blake is completely right, then that can easily be extrapolated to drag queen story hour and to obscene stuff because the court will say, hey, you know, you can burn a flag.

You can have, hey,

like publicly nude beaches because it's freedom of expression.

Like, one is expression.

And Blake, I know that's not what you mean, but that is what the courts will do.

Simultaneously, though, Jack has to reckon with and reconcile that such restrictions on burning a flag, of American flag, will 100% be used to say that we cannot also burn an LGBT flag or even worse, like it's going to restrict freedom of expression in general.

Unfortunately, the courts

no nuance on this.

Hold on.

So what we want is, but I guess the question is, Jack, if you had to choose,

if you had to choose, this is why Jack's argument is at his weakest, and I want him to respond.

If you had to choose one where we had a UK-style form of speech code where people are going to knock on your door and get restricted, or if you had to choose kind of the libertarian thing where like, hey, burn what you want, do what you want, which one would be better for our side?

I mean, it's a total false binary that you're setting up there.

We don't live in the UK.

It's not so, Jack.

It's not.

The problem is, you're choosing a.

It's a complete false binary.

This is a 1989 judgment.

Jack, you are putting forward.

Jack, let me finish my thought.

You're putting forward a legal theory that nobody agrees with in the entire federal bench.

There's only really two ways.

Free speech absolutism or speech restrictionism on European style.

So you have to choose kind of which navigational path to go on.

And honestly, I don't like when people burn the flag.

It'd be good politics to

ban it.

But I just kind of cringe because the last couple of years we've been yelling about free speech under Biden and under during COVID, I don't want to go towards any sort of restrictions of it, even though I could have

a speech.

You're cool with pornography being speech.

But of course, we'll say that it is speech.

You're totally cool with pornography being speech.

And my point is right.

You love free pornography all over the place being protected by the First Amendment.

Again, that's...

You think that's what our founders wanted, Charlie?

Again, no, I'm not sure if you're not.

Because that's the side you're on.

And that is a misrepresentation I'm saying.

That's 100% the side you're on.

That's free speech absolutism, like you just said.

Again, you keep interrupting me, and so I'll just kind of let you guys chat because that's not a discussion.

So if you had to choose, I would much rather lean on the side of disgusting things being allowed to say.

be said rather than having a government be able to restrict what we as conservatives want to say.

I don't like either either option.

I mean, libertarian must be aware of that.

I'd rather be able to speak.

I actually agree with you, but we have to deal in reality, not just a theoretical esoteric project.

There's the two choices in front of us, which is a libertarian free speech approach, which is the ACLU agenda, or we can go the way of just pure European totalitarianism.

I mean, that's really

ridiculous.

Like, that's a ridiculous choice.

Nobody's saying that.

We're talking about making a protection,

going back to the original protection.

Would you have said that to the pro-lifers, Charlie, when they fought for 50 years to get rid of Roe v.

Wade?

Again, hey, guys, well, this is in the Constitution now, and nobody agrees with you, so just shut up and take it.

I never, Jack, you're completely misrepresenting my point.

I never said any of that.

I'm saying the reality of

the federal bench.

Would you have said that in 1973?

No.

I didn't say that in 2003.

I said the opposite.

I said, we must keep marching towards.

By the way, I think eliminating abortion is infinitely more important than eliminating flag burning, okay?

Like, infinitely more important, by the way.

One is made in an image of God, one is not.

Right, but

my point is that it's not in the Constitution, and obviously it's important to get rid of.

I have one more point I'd like to say.

Hold on.

No, the right to life is 100% in the Constitution.

That's not correct.

No, no, no.

I'm saying abortion is not in the Constitution.

No, I agree.

No, I totally understand that.

I'm not even arguing on the merits.

I'm arguing on the current legal regime leans either the European direction or the Blake Neff libertarian free speech direction.

And you have to choose which side you kind of want your volitional energy to go towards.

And we can hope and wish and pray that a prudential bench of classical, you know, Western, canonized, you know, nationalists rise up in the legal community.

But

it's Marxist to say that you would go ahead.

I mean, Blake can chime in.

Well, I was just going to say,

I think, in those terms,

I think all of us would agree the Blake Neff free speech method is better than totalitarian.

And that is the choice in front of us.

Totally.

That's the obvious answer.

But I think the idea is that if there's one thing that we can carve out, and if there's something that we can be

politically ambitious on, it's, look, protect the culture and the concept of America, especially

in this time period that we're in this very unique time period right now with Trump, where it's like, well, hey, we may be able to

maximize,

especially with the young males that are out there that are feeling really weird about all of the side conversations and side quests that the left has gone down on attacking America.

This might be the time to kind of take our own Roe v.

Wade.

And I, and again, I don't want to put it in that terms because I know that probably Jack doesn't won't really appreciate that, but this might be an opportunity for us to take some ground and let the let the left fight over that for the next 30 years

at this time.

Like, I don't know.

I just think that that might be a smart move, but politically.

Yeah, you can't be afraid of a fight because a fight is hard.

But that being said, public opinion, this is an 80-20 issue.

It's an obvious 80-20 issue supporting the American flag.

Again, and fighting for the American flag will increase support fighting for the American flag as our freedom.

This is the symbol from which all of our freedoms flow.

It is the symbol of our nation.

It is a symbol that people carry into battle.

That is why American soldiers, when they go into, that's why the flag on the uniform is printed backwards.

If you look at a uniform, because it is meant to represent the flag being carried into battle.

And that's why, as a symbol of our nation, yes, it should be sacrosanct.

And there's no question about this.

And I don't think that it's going to create this situation where all of a sudden we're the UK.

This is one thing.

It is a specific thing.

And we're carving it out and saying, no, you can't burn the American flag.

It's as simple as that.

It is the smart move politically, and it is the smart move nationally.

Well, there's a lot of constitutional rights that don't pull with majority support or even close to it.

I would say, I want to...

I want to close on kind of an important thought because we've had this back and forth on whether expression counts as part of the First Amendment.

And all I would say is if freedom of expression is not a right that you have, then the government can compel expression.

So what if the government wants to make you salute the gay flag?

That's not speech.

The government, I'm sorry, if freedom of expression isn't protected, the government can force me to salute something?

Yeah.

Because you don't have freedom of expression.

Part of freedom of speech is the right to not say something.

It is the right to not be made to express a point of view you do not hold.

That is also part of freedom of expression.

It is the right to not be compelled in speech, to be compelled in expression.

So if you don't have that right, the government can compel it.

Okay, Blake.

Well,

when we're in a situation now when we don't have Marxists shooting up

Catholic schools and Marxists marching on Washington burning flags, and we've just spent a couple of years dealing with all this in the streets, then maybe, maybe I'll be worried about someone trying to pass a law that says I have to support the pride flag.

But here in reality,

that is the culture war that we're in.

That is the culture war that we have a actual fighting chance of winning right now if we actually stand up.

Like you, you are.

And like the truth is, the government, if it can ban burning the flag because freedom of expression is not real, well, they could ban you posting a meme that they don't like because the meme's not speech.

Meme is an image.

It's different.

They could ban the Gadsden flag.

They could ban doing that distress flag that they were mad that Alito's wife is waving outside her house.

They can do a lot of things.

It wouldn't work at all.

Of course it would work.

They've done these things.

Just going back on Charlie's practicality argument.

The government's already done these things.

Right now, it is our freedom of expression that has

the ability to prosecute those things.

There are a lot of cases

where the government has attempted to criminalize behavior as disruptive, and we've been bailed out

by our situations where someone went to jail for for posting a meme, Blake.

Please try to live in reality.

Please.

Yeah, they tried to put a guy in jail for posting a meme.

And guess what?

Yes.

He didn't go to jail for it.

That's because our freedom of speech discourse is good.

Liberal judges ruled in our favor on that.

That's a good thing.

Literally, if the body should not throw that away, they would still be pushing to lock up Doug Mackey.

Yes, they would.

They want to put Doug Mackey in jail

right now.

Our constitutional norms, including a freedom of speech.

The idea that you have to protect us

from the overreach

who hate freedom.

We're totally able to preserving freedom is how you preserve freedom.

You can't have nice things.

You can't have nice things like that when the situation is what it is regarding the American flag.

So this is the political jujitsu, though, Blake, is if you actually make flag burning illegal, then the left starts fighting on behalf of free speech, which is what you want.

Well, no, I would say the best part about this is just that it'll probably provoke the left to burn flags, and that's good because burning the flag is unpopular.

So it's a way to think it should be a way to.

I'm not going to burn a flag.

Burning a flag is gross.

So then the left will fight for free.

I think there's some really good takeaways, though, which is that we should fight for this politically very carefully and prudently, though.

I don't agree with Jack.

I think you should be able.

to burn the Quran.

I think you should be able to desecrate other people's religious symbols.

However, if you want to pick a fight for national unity on a singular flag object, great.

But I think we got to also take a page off of Blake's book that, hey, like, it's good that we're able to just speak openly on the show right now, guys, called Thought Crime, and we don't have to worry about being arrested for hate speech by some sort of government agency.

I think that's good.

And Jack says it's a false choice, but it is a, you start going on that road of speech protections.

And so I think both can simultaneously be true.

And yes, it is the greatest kind of left-wing bait ever because now they're going to start burning flags, being like, we can totally do this.

And

so, Jack, do you want to finish your thought because we keep talking over you?

Yeah, no, I mean, like, what I'm what I'm saying is, though, that I do actually think that so, yes, there's a practicality part of it.

And yes, I think politically, obviously, it makes a lot of sense to fight for this.

That's why the President did this this week.

There's no question.

So certainly, you know, stand with the President on that.

But this has always been something that I'm for, even, you know, far before President Trump became, you know, involved politically.

And it's, it's something where I believe the way the Constitution is written as current, right, as it currently stands, is

that it makes sense for this to be a states' rights issue.

So, when it, which is what I was saying when I was talking about the religious symbols as well.

So, we do have that as the, you know, you know, as freedom of religion.

But when it comes to things like desecration of the flag, whether that counts, this is why we have federalism.

This is why we have states.

This is why we have the 10th Amendment.

This is why we have the states as the laboratories of democracy, right?

The small D bet word that we used to be able to say.

This is why the system was set up the way that it was.

And in that system, we had 48 states with

which banned flag desecration.

This is the ideology of the founders.

This is the ideology of the people who built the United States and got us to the point that we're in.

It is not some false,

you know, right that was just created in 1989.

So I'm really just arguing for the traditional view of the American system.

Yeah, I mean, the states thing kind of feels like a cop-out.

I mean, I'd honestly like prefer just

to make it a federal thing.

It's just no, I know, but if it's bad, just ban it.

I mean, that's kind of, that's my view, which is especially we're not talking about like not burning the North Carolina flag or not burning the Arizona flag.

It is the American flag.

So I think, again, I just, the states thing, I'm just kind of getting tired of this whole states thing because it just kind of feels like a little bit of a little bit of a cop-out more broadly in the movement.

But it is great.

This has been great.

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Blake, do you have other thoughts on this?

We really don't have much time to cover much else, but this is great.

Yeah, I mean, I think, I think I basically said my piece on this.

I just think a great thing in America that has not, you know, we sometimes talk about like, okay, it wasn't always the case, but we've had that on other things.

Like, we had it with Jim Crow.

Like, we've been able to acknowledge that America's constitutional rights have been imperfectly applied at times, that they were not extended to everyone that they actually belong to.

And I think we can easily say that's the case with freedom of speech.

That before the Civil War in the South, you didn't have real freedom of speech.

You didn't actually have the full freedom to criticize slavery.

They would literally go and they would smash your press up.

And it has taken time for it took time for us to reach the full flowering of American freedom of speech.

I think it basically took until about World War II for it to happen.

But I think that was a great example of America at its absolute peak.

We were at the absolute peak of freedom of expression.

And just at that time, we start seeing censorship tendrils start to spread in the rest of the world.

We start seeing, you know, you can say we'll never be like England, but England didn't think it would ever be like England.

That's where we got freedom of speech from.

They were the freest country in the world in terms of speech for a very long time.

And they allowed themselves to move in a different direction where now they have blasphemy laws.

Now they have these very loose incitement laws where you can't say certain things.

Now you can get in trouble.

in England for like waving the flag of England because they will consider it incitement.

And again, if expression is not included within what the First Amendment protects, then you can criminalize forms of expression, not just burning a flag, but also waving a certain flag.

And if that's going to happen, if that's going to be an option on the table, the left will do it.

I don't want the left to be able to do it.

Well, not to open a whole new cam of worms, but you know, this kind of got opened up.

I totally support states throwing people in jail for burning the state flag and protecting state sovereignty

against the federal government.

And I think it's a, I think this actually is connected because the the federal government coming in and saying that oh it's protected speech to burn a state flag when a state itself should be protecting its people against the federal government is a whole other conversation that is really important for america to have because i think states should be able to protect their their brand their culture everything else against the federal government so maybe that really starts

but we have social technology matters.

It's like monogamy is a social technology and all these things.

And we're basically when we say let's throw this, let's throw this away and bring back flag-burning laws, we're saying let us get rid, let us diminuate, let us curtail the piece of social technology we have in America that makes it so that we are not like China, not like the UK, not like continental Europe, not like Saudi Arabia.

I don't want to do that.

So unfortunately,

the bigger...

I'll just say the problem is that in reality, when we don't hold up one symbol that we can all rally behind, this nation is going to be torn apart?

We have too many people here from different countries.

We have too many people who believe in different isms.

Transgenderism is their identity.

So, the biggest problem in America today is because we have not only these many nations of ethnic enclaves, but many nations of

identity.

And so, if you hold up one thing and say, this is the thing that we should all rally behind, the red, white, and blue.

And it doesn't matter what race what creed what color you are this is the one thing that is protected that we will rally behind that if we don't that we will continue to fight each other and this country will just be torn apart it will just be absolutely torn apart and and i think that's the main reason that president trump is doing this now to that to give us a symbol that we can all rally behind I got we have to go, guys.

Tyler, really quick, your thought on Taylor Swift submitting to Travis Kelsey and changing her name.

I hope Travis

Kelsey has the worst season ever, and everybody blames Taylor Swift, and everybody gets the great picture, the grand picture.

I hope he's the worst.

I hope he's the worst drafted fantasy football player in the history of fantasy football players, and he has the worst year ever.

They blame her.

That's what I hope.

I hope they have a wonderful marriage.

I hope Travis Kelsey is the MVP of the league.

They win a Super Bowl and that they have a Super Bowl baby.

I hope that

they have lots of children.

It'll make them happier.

I have learned that anything I say about Taylor Swift is the easiest way for me to get publicity.

It's amazing.

I don't even try, by the way.

It's like international news.

People are texting me from high school, and

I haven't heard from these people in years.

It is really something.

All I said is that Taylor Swift should submit to her husband, which is

abundantly biblical.

She never will.

Taylor Swift is the Hillary Clinton Clinton of our generation, okay?

Listen, she is,

she is,

there's so many parallels

between Travis Kelsey and Bill Clinton.

I have, listen, all I know is this, is that Hillary Clinton was smart enough to take advantage of a man for her own, you know,

betterment.

And this is exactly what Taylor Swift has done in this relationship with Travis Kelsey.

It's not, even if it lasts, like Bill Clinton and Hillary Clinton's marriage has lasted, it hasn't been good for America.

And neither will Taylor Swift and Travis Kelsey.

I will stand by that.

I don't care how many nasty tweets I'm going to get after this.

Yeah, no,

the reason that you see the memes of Travis Kelsey being pregnant and Taylor Swift, like, you know, wearing the actually, I haven't seen this meme yet.

We should make one of Taylor Swift wearing the tuxedo and Travis Kelsey wearing the

dress,

even though I'm not sharing them myself because you know this like just psyop continues.

So when you see this video they're showing right here, when you see Taylor Swift put the claw on Travis Kelsey's face, the way she has, it's a domination move.

Newsweek wrote me up for saying this last year, and she produces these domination moves and domination gestures over and over and over.

This is also similar to the green line test that Alpha Rivellino uses.

And she's constantly doing this to him, whereas he's leaning into her, she's leaning away from him.

And this shows, and it's something that we can all subliminally or just subconsciously understand

that she has the dominant power in that relationship and he is the submissive.

So this is the anti-biblical status where basically Taylor Swift acts like a man and Travis Kelsey acts like a woman.

And that's why those memes get traction, because we can tell that he is a submissive man to the dominant girl boss

feminist icon that he is now getting married to.

Poor guy.

I hope they end up very happy.

Email us freedom at charliekirk.com and subscribe to our podcast.

Thank you guys for listening to Thought Crime.

Also, check out Human Events Daily every single day.

God bless you guys.

Have a wonderful Labor Day weekend and talk to you soon.

Thanks so much for listening, everybody.

Email us as always, freedom at charliekirk.com.

Thanks so much for listening, and God bless.

For more on many of these stories and news you can trust, go to CharlieKirk.com.