Trump Calls For Punishing Those Who Burn The American Flag

495px-Donald_Trump_by_Gage_Skidmore220px-us_flag_burningDonald Trump has set off a new controversy with a signature early morning tweet. Trump lashed out at those who burn American flags and said that they should be punished for their actions. The problem is that this question was already answered by the Supreme Court, which found that such acts (while despicable) are constitutionally protected under the First Amendment to the United States Constitution.


Early this morning, Trump went on Twitter to say: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”

I have long been critical of those who burn our flag, which I view as a symbol of our constitutional freedoms and the sacrifice of generations to preserve this Republic. However, there are many things that people say or do that I find disturbing or insulting. That does not alter the fact that they are protected expressions of free speech.

481px-Earl_WarrenPresident-Elect Trump does not appear to see it that way. Yet, both the Constitution and the Supreme Court stand in the way of punitive measures for flag burners.  Having said that, Trump’s view has been shared by various justices in history including such liberal icons as Chief Justice Earl Warren in his dissenting opinion in Street v. New York394 U.S. 576 (1969).  Likewise, Hillary Clinton supported such a law in 2005.

Nevertheless, in the United States, the destruction of the flag is a protected form of free speech. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia, who Trump has expressed great admiration for. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:

Justice Kennedy
Justice Kennedy

Justice Kennedy wrote a concurrence with Brennan’s opinion.[3] Kennedy wrote:For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

Congress has shown the same opposition to the decision as Trump. It passed the 1989 Flag Protection Act to make it a federal crime to desecrate the flag. That law was struck down in United States v. Eichman, 496 U.S. 310 (1990).  The Court ruled that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Various congressional members have also sought to pass a constitutional amendment on flag desecration but the proposed amendment has failed in the Senate.  It has been ten years since the last serious effort has been made for an amendment on the issue.  Trump aides might argue that he was not questioning the legitimacy of the decision but supporting a constitutional amendment.

I understand Trump’s anger and I indeed share it when I see the flag burned. However, you do not protect the flag by diminishing the very thing is represented: our constitutional freedoms.

Of course, while Trump cannot change the meaning of the Constitution, he can change the make up of the Court (or support a Flag-Desecration Amendment). Ironically, by replacing Scalia with someone who does not hold as strong a belief in First Amendment rights, he could shift the vote toward a reversal of the 1989 precedent. I hope that that is not the case. It could place this country on a slippery slope of criminalized speech. I prefer to live in a country where tweets and protests are both given ample protection.

216 thoughts on “Trump Calls For Punishing Those Who Burn The American Flag

  1. What I think Trump’s tweet exposes is the need for a national dialog on the principles this nation was founded on. Are the self-evident truths in the Declaration of Independence actually self-evident? What made them self-evident in the 18th century and not so much in the 21st? Are they based solely on the morality of the age in which they were written or are they timeless principles intended to guide the social contract of all civil societies?

    The first two in the Declaration set the stage for the last two. (1)”that all men are created equal, (2) that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (3) “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, (4)That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    We have a nation divided over the 3rd and 4th but why? Is it because they do not accept the premise of the first two? We will always have those that do not believe in the 1st, but what would motivate people to deny the truth of the 2nd? Is it rational to argue against the existence of natural rights when doing so puts at risk one’s natural desire to exist?

    Our constitution was written to fulfill the truth of the 3rd. That truth, the purpose for government, is to provide civil society an environment that secures the unalienable rights for all its citizens equally.

    The question that always comes up is who gets to decide what are natural, unalienable rights? And that is the discussion that Trump’s tweet should ultimately encourage. Because if we cannot achieve consensus on that (the 2nd self-evident truth), then the 3rd is no longer self-evident. And if that is the case, then our constitution becomes a meaningless piece of paper. The rule of law then becomes whatever the political class desires. There should be a self-evident truth between the 3rd and 4th. Eventually the People will shake off their apathy, recognize the loss of 1 and 2 due to our generations own “…long train of abuses and usurpations,” by government and exercise the 4th self-evident truth.

  2. The Supreme Court definitively concluded flag burning is protected speech, yet I suspect most, if not all, flag burning statutes remain current law. I doubt the various state legislatures would have the courage to repeal these as being obsolete.

    • I wouldn’t call 5-4 with two strong dissents “definitively.” Justice John Paul Stevens wrote the flag “is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. … The value of the flag as a symbol cannot be measured.” … “The case has nothing to do with ‘disagreeable ideas.’ It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset,” and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself.

    • Thanks for the clip, Darren. I agree with Prof. Turley generally. I just don’t think burning a flag is ALWAYS despicable. It’s mind control that’s ALWAYS despicable.

      Some of the comments were outrageous.

      “Burning the flag is not speech. speech comes from the mouth.” Right, unless it’s in the form of money funding a political campaign and then it’s definitely speech.

      Sheesh.

  3. Are we making too much of this? Let’s consider the possibility that Trump is messaging his core base nationalists, to whom the flag is sacred. Once again he fools the media and commentariat. He got the attention he wanted, which has been his strategy since summer 2015. Can he sustain it for 4 years? Probably not.

    • Gabriel Marcella – Trump has been playing the MSM like it was a finely tuned violin. He really has their number. Their heads are spinning 24/7.🙂

      • Paul,
        He keeps fooling everyone, including Jonathan Turley , who took the trouble to explain the legal argument with his accustomed rigor and eloquence. Trump trumped Turley.

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