Your Independent Journal from the Heartland
It was 1862 when Confederate sympathizer William Mumford was found guilty of desecrating the Union flag. New Orleans was on the precipice of Northern assault and eventual occupation, and civilians were outraged at the growing number of Yankee standards replacing their treasured Stars and Bars.
In protest Mumford and six other locals removed a Union flag placed atop the city’s mint, and set out to give it to New Orleans’ mayor as a sign of conquest. But as he walked the short distance to City Hall, citizens tore at it from all sides. By the time Mumford reached his destination, there was little left save pole and rope.
Taking umbrage at such a public act, a Union officer jailed Mumford, who was convicted of treason by a military tribunal and hung just outside the mint’s front door. The episode reverberated far beyond military circles, heralded in the North as an act of patriotism.
Flag desecration — most often by fire — was unlawful before and long after Mumford’s execution. Not until the Supreme Court’s landmark 5-4 decision (Texas v. Johnson, 1989) did flag-burning gain protection under the rubric of free speech.
Two generations of Americans have since grown up constitutionally free to set fire to a bolt of screen-printed polyester. But nowadays no form of nonviolent political dissension is truly safe.
Late in August, Trump signed yet another overreaching executive order, this one requiring the Justice Department to investigate and bring to the bar anyone caught burning a flag: “My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.”
This is Trump, yet again, working to undermine free expression. As The Nation’s Justice Correspondent and columnist Elie Mystal aptly described it, “Trump’s recent flag burning executive order—ridiculously titled “Prosecuting Burning of The American Flag”—exists in the rare quadrant of flagrantly fascist, patently unconstitutional, and utterly stupid.”
But the by far best response to this monarchical madness should be credited to Jay Cary, the U.S. army veteran who within hours of the executive order burned a flag just north of the White House. Upon hearing the news Cary decided he would “put this to the test.”
Prior to lighting the flag, he made plain why he was risking arrest: “No president can make can make a law, period. No Congress can make a law infringing on First Amendment rights. I’m burning this flag as a protest to that illegal, fascist president that sits in that house.”
Cary was intercepted by Secret Service agents, arrested by U.S. Park Police for lighting a fire in an undesignated area and risking damage to park property. Both are petty-level misdemeanors, the lowest rung of federal offenses — charges that are typically settled with small fines. And Cary has stated his flag burning days may not be over.
This latest attempt to criminalize dissent indicates just how far Trump will go to convolute nationalism with patriotism. The optics of protecting the flag from unpatriotic miscreants only reinforce the illusion of a president-patriot in love with his country.
Don Rollins is a retired Unitarian Universalist minister in Jackson, Ohio.
Email donaldlrollins@gmail.com.
