Donald 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.
President-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 York, 394 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 wrote a concurrence with Brennan’s opinion. 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.