free speech, the flag, and property rights

A big stir up in Louisville this week involving education, free speech--and a lesser appreciated liberty these days: property rights.

A week ago today 7th grade social studies teacher Dan Holden decided to burn a couple of small American flags in class to provoke debate and thought about free speech among his students. I was a seventh grade social studies teacher myself once upon a time, and still work in the education business (now as an administrator), and I've got to admire Mr. Holden's courage: I really believe he thought he was responding to what educational research has been telling us for a long time: many students learn visually and emotionally--they have to be engaged to learn and remember. I am quite certain those students will never forget the day Mr. Holden burned a flag in class.

I hope they also understand and remember his point. I'm not sure they will, and Mr. Holden may pay a heavy price for his educational riskiness. There was an (easy to expect) outcry from parents, who were both outraged at his actions but also concerned about safety issues involved when teachers set fire to classroom objects. Mr. Holden has been placed on non-instructional duty while the Jefferson County Public Schools investigates his case.

The real issue Mr. Holden has revealed, however, is not that flag burning is protected speech. It's one more subtle, and one that civil libertarians often miss: that free speech is inextricably linked to property rights.

I do not have an absolute right to free speech. Most people get that slander and liable are not protected speech--but the issue is bigger than that. I ultimately have free speech only on property that belongs to me, or where I have gained the permission of the property owner. I cannot burn flags in the middle of McDonald's, for example, unless for some strange reason the company's ownership is okay with me doing so. But I could burn a flag in my front yard, or perhaps in a public park, for all the world to see. I could not steal my neighbor's flag and burn it (this is theft and destruction of private property), nor could I brandish the burning flag in my neighbor's face (wanton endangerment), nor could I yell and scream in a way that would disturb my neighbors in the quiet and peace of their own homes (disorderly conduct). But if it's my flag in my yard and I'm not infringing on anyone else's rights, then I have freedom of speech and the freedom to burn it.

Mr. Holden was not, of course, in his yard. He was at work and acting in his capacity as an employee. I hope the JCPS understands Mr. Holden's intent, but if they decide that flag burning is not an acceptable activity for their employees, they are completely within their rights to restrict his speech. I hope they give him a second chance, and that he understands the limits of speech in the work place, but more importantly I hope his students have an even richer understanding of liberty than perhaps even Mr. Holden intended.