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:
“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.
If Trump wants to punish people for burning the flag then he has to get a Constitutional Amendment ratified. However, I would NOT support such an amendment .
That is because no matter how narrowly the amendment is written the unelected and unaccountable activists in black robes have a long history of reinterpreting the Constitution and its Amendments according to their own personal preferences or what they believe is the majoritarian consensus. That has resulted in them inventing rights that don’t exist (abortion and homosexual marriage) and insufficiently enforcing explicit rights (religious liberty and until recently restricting the right to bear arms).
Use argument; debate; stigma; education and other means to persuade people not to burn the flag. If we ratify an amendment to ban flag burning history shows that we will quite likely really be ratifying something much broader than we intended, depending on the whims of the justices some time in the future.
First, I disagree with JT and Trump that there should be an anger over burning the flag. If the flag represents our democracy to people then each person who feels that way should consider burning one today. What defiles democracy is the corruption among the powerful. For example, as I write, Native Americans at Standing Rock are being attacked by a militarized police force allied with private contractors with the full faith and credit of elected officials to include Obama. These Native Americans are on their (broken) treaty lands. There is no democracy when the govt. itself attacks its citizens with military equipment, in an illegal and completely immoral way. Burning the flag is a completely appropriate way of saying that what is happening there is so antithetical to democracy and the rights of the people that the govt. itself is burning down democracy.
When Obama asked for and the Congress passed the NDAA the govt. burned down our democracy. This is what should not be allowed. We ought to protest the destruction of the rule of law, of our rights, of the inability to seek redress of grievous harm from this govt.. As of right now, the govt. is in full swing against free speech. Trump will of course continue that destruction. It is the govt. which usurps the rights of the people. The flag, if it ever had a meaning of democracy, has been subverted by this govt. Let it burn.
Your image of the government burning democracy itself -instead of the flag- in breaking it’s treaty with Indians on their own tribal lands is powerful. I’m less sure that anger over flag burning must preclude anger over the government illegally breaking its treaties with Indians in favor of private interests (and thus of payola to pols).
The legality of burning the flag as an expression of freedom is and has been an important legal issue with significant political as well as day to day implications. It is a very obvious and understandable choice of subject for a legal blog such as this, not to say that what’s happening in Standing Rock is any less so.
The left doesn’t seem to mind it at all when speech they do not like it is suppressed (hate speech, the wrong gender pronouns, Trump chalkings, etc).
And they have no problem forcing people to use speech they desire (baking cakes for gay weddings).
One would think that banning speech like flag burning would be right in their wheelhouse.
KCF, You are erudite. The left have taken the Animal Farm notion of, “All animals are equal, but some are more equal than others” quite literally.
Well said Professor Turley.
IF (!) the US flag represents freedom then it should represent the freedom to burn the US flag.
I don’t think that a piece of cloth can ever represent freedom. The actions of living breathing human beings represent freedom and when those actions start being supressed in the name of a flag which supposedly protects their freedom to act then something is very wrong.
Got a pencil? Get in there, it’s physics.
Burning down a house is not “speech”. Burning down your own car is not “speech”. Burning your own family bible is not “speech”.
However, “free expression” is broader than mere speech. Free expression is putting the swastica on the Trump Hotel. Free expression is telling Congressmen that they are ugly ducklings. Free expression is burning your own swaztica or Nazi flag. Free expression is burning the GW flag which you own. Free expression is burning a U.S. Flag– as long as it was made in China.
Scalia, who was key in the Texas v Johnson case, said in his inimitable style during a public appearance, “If it were up to me, I would put in jail every sandal wearing, scruffy bearded weirdo who burns the flag. But I am not king.” I believe that plain spoken, honest, statement breaks it down better than any other. We formed the greatest democracy ever, after revolting against a king, based on a Constitution. And, the 1st Amendment is the most important tenet in that great Constitution.
I’m going to come down on the side of the Supreme Court decision on this one. I don’t agree with it but it serves two useful purposes.
One is identify ‘certain people.’ so it’s something like wearing a red tie and worrying about assassination to be blunt. Or standing in front of wind waving flags which provide even more information. Not in the best interests of the burner or the speaker.
The second reason come from being a moderate centrist and firmly in support of the Constitution as the Center of this Consitutional Republic. The rules were followed the court made it’s decision it can be repealed or over ridden by an Act of Congress leading to an Amendment. It does act as a red flag so to speak to the selection of Supreme Court members as a useful by product.
One cannot cherry pick parts of the Constitution but take it as a whole document one part often affecting another part. A good example is the money as free speech ruling which crfeated a right not granted and AT the same time denied existing rights. In that case I believe the court was in error but. going back to the preceding paragraph ……I’ll stick to my centrist moderate until a different court fixes the mistake.
The Supreme Court got this one right. As despicable as the action of burning or otherwise desecrating out nation’s flag is, it is still protected speech. My husband and many many others who served in the military, did so to protect these rights for everyone, not just those we agree with. There are however, often other crimes which accompany such acts which can be punished. While it is permissible to destroy your own property in a manner that harms no one else, all too many times the flags burned are ripped down from a flag pole and burned. These acts constitute theft, arson, destruction of property, possibly reckless endangerment. Those are crimes, not protests, which can and should be punished according to the law.
SierraRose: +1
Lloyd Blankfein: +1
Yep, just the point I was making above, before I read your comment here. Not all actions can be considered speech, protected or otherwise. There are more than two perspectives on this subject of burning a flag.
Americans are such simpletons. They don’t care if rights are taken away, they don’t care if they are lied to by the new liar and thirf, they don’t care that they read and believe fake news, they don’t care about human rights, they don’t care about endless wars, they don’t care about the new promoted ‘hate the other’, they don’t care about economic injustice, they don’t care about freedom of speech, they don’t care about illegal torture, they don’t care that trump is buddying up to Putin, they don’t care that they are being spied upon by NSA, they don’t care that American voting systems are so bad that it rates 38th in free world, they don’t care that trump grabs p^ssy whenever he wants. No. No big deal. But burn a flag. Outrage!!! Ignore reality and stand up for symbolism. Enjoy the ride.
The average person is merely ignorant of things which do not concern him and over which he has no control. The true simpleton is the progressist blowhard who confuses his fancies with history, social relations, and law. The palaeo blowhard and the libertarian blowhard are just as bad.
The Steak-Salesman is ignorant on absolutely everything: he has no idea or depth on any issue.
The president’s job requirement is laid out in the oath: and SS Trump likely has never read the very document he’s supposed to uphold.
Even Republicans who claim to dry-hump their copy of the Constitution before sleeping each night should be outraged by this.
I’d like to torch Anthony Kennedy’s chambers, as well as his robes. It would be constitutionally protected speech.
Toads – you might get away with torching his robes as protected speech. Torching his chambers is arson.
It’s only arson because five lawyers meeting in secret say so.
Toads – if you are talking about the SC, they do not need to be lawyers.
The relevant question no one is asking is, “Who owns the flag that is being burned?” A flag is made of cloth and is a piece of personal property which is owned by someone. If you own the flag that you are burning, then you are destroying your own property, which anyone can do if it is done without endangering other people or their property. If you are burning a flag owned by someone else, such as a university, then you are destroying their property and you could be arrested for that and tried for it as a criminal act. Such a crime should not be considered protected by the Constitution, regardless of the “statement” the arsonist thinks he is making.
Who actually owns the robes? Seems to be you could potentially be criminally prosecuted for destruction of someone else’s property.
Classic demagoguery.
Steve Groen – the SC has overturned itself on occasion and even now they change decisions on the fly. You have to check with the court to see what the latest wording is on any current decision, since it changes from day to day. Currently this is protected speech, but it was a 5-4 court decision. Who is to say a new court might not vote 5-4 to convict?
It’s still classic demagoguery. Just look at Toads’ comment. She asserts her free speech right to declare she’d like to “torch Anthony Kennedy’s chambers, as well as his robes” while on the other side of her jowls criticizes the burning of the US flag. And I’m sure she wears her lapel pins and curtsies to god, corps, and country.
I’ll give him this: Trump sure knows who will stand up and fight against free speech!
Steve Groen – Trump is not sure who will defend him. He knows the so-called ‘free press’ will not defend him. He knows the pollsters will not report things correctly. Trump knows that some people respond to his message and some not. I have always thought Scalia was right on the flag burning issue.
Trump definitely knows how to stay in the news and no doubt takes considerable pleasure in lighting pants afire. To be seen whether his rant has motive or reason.
An interesting thought (er, well, I find it interesting); namely, the establishment has seen far enough ahead to engineer these constant octinary battles between evil and its so called lesser evil sibling. Can Trump’s success be taken to suggest that they have also considered what they would like to have happen if people chose the one presented as the greater evil? We were clearly supposed to choose Hillary, and instead chose Trump (or probably chose Trump, or, er, may have chosen Trump…). Is the establishment idea behind this otherwise stalwart neoliberal (Trump) that we are to be sea-sawed through his sustained TV terror for the next four years until we get it right in our minds for next time?
That would have been a bit of a stretch for McCain/Palin so the thought is sketchy at best. Still, I often wonder just how cohesive and single minded the “establishment” is.
While it is true that the court does on rare occasion reverse itself, I doubt that this particular case is one that is likely to be revered. The court has overturned one of its previous Free Speech decisions only seven times. There is a strong tradition in the SC to honor precedent. Examine the cases that have been reversed. There usually must be a very compelling reason to convince SCOTUS to reverse a previous court. I just don’t see a reason strong enough for SCOTUS to do so on this one.
dogfightwithdogma – all it would take would be two new justices and a new law making it illegal. Then the wacko 9th circuit striking it down and any other circuit upholding it. I can see it happening.
“Demagoguery” does not mean what you think it means.
The notion of ‘speech acts’ is a half-baked idea which needs to disappear.
Trump is wrong. Free speech requires the protection of speach with which we don’t agree. Burning the flag speaks volumes. It is protected speach.
It’s ‘protected speech’ only if you define ‘speech’ per the I-say-its-spinach principle.
It is free speech because it is a form of political expression, which is what is fundamentally protected by the free speech clause.
Dear Donald,
There can be no crime without a victim.
It seems that Mr Trump is a clueless moron when it comes to understanding the
US constitution or the principles espoused in the Declaration that it was supposed to enshrine and protect.
The flag is the symbol of brainwashing young children in the 12 year long government indoctrination camps. The flag is used to condition them to unquestioning fealty to the state. That was the admitted purpose of the Austrian educational system that we based ours upon.
If Trump takes this stand then I wil be forced by conscience to buy some flags and publically burn them.
What a gawd damn idiot he is. He had better learn something about history and the principles that this country was founded upon.
InalienableWrights – any case may be retried if the court agrees. If he can get Congress to pass the law and he signs it. The first arrest will set the ball in motion. If you make it a federal crime, you can make it a state crime.
Paul you don’t have a clue as to what Marbuy v Madison really was do you?
Nor the fact that the “power” of judicial review was never given to the supreme court by the Constitution,
It was an out and out criminal power grab….
Who was it that said that if you repeat a lie often enough that they will believe it?
Goebels, Hitler’s minister of propaganda.
InalienableWrights – I know exactly what Maybury is. I took a 2 semester course in the history of the US Constitution. 400 level class. Got a B in the 2nd semester, which I took first and an A in the 1st semester. I have also taken a 1 semester course in just the US Constitution taught by a federal judge where I received an A.
You are assuming facts not in evidence. 😉
You may Paul, but you are foolish to assume that anything taught in our educational system is even remotely true. That is usually the last place that I go to for answers…
We should not be passing Amendments to define what our rights are. We then become like France where everything not explicitly allowed is prohibited. It becomes government handing out permissions.
Besides are you really really for the 2 or 3 million amendments that it would take to even come close ot defining every right?
InalienableWrights – I am not for passing more amendments. However, I am not against the SC re-examining its 5-4 decision in the flag burning case. Of course, we would need a new justice before then.
IW
“Who was it that said that if you repeat a lie often enough that they will believe it?
Goebels, Hitler’s minister of propaganda.”
Nah, that had to be Trump. And, it worked like a champ.
On this we are in agreement. As distasteful as it is it is a form of freedom and a necessary form of protest. The moment objects are made sacred beyond the freedoms they represent is the moment the distance between those objects and those freedoms grows and grows to distort and distort. Take, for instance, the second amendment-perhaps I should be jailed for not capitalizing. The perverse focus on the second half of a statement penned well over two centuries ago in vastly different and almost totally unrelated circumstances has taken this country into a condition unique only to third world countries in turmoil. The gun enthusiasts who quote the second half of the second amendment do so as if this were a sacred object bestowed upon America from on high.
Trump is using the same mindset to prepare his audience/critics for the damage he has already started to inflict. Trump is building a nationalist protective wall around his actions and words and appointments by doing what he did so astutely during the campaign. He is focusing on those angers and other emotions that he can use to over ride common sense. Trump’s perverse forms of self aggrandizement and protection will be seen as he focuses on the big prize, a second term, where he will do the most damage. Ginzberg can’t last that long.
It is also possible that along with all these reasons he is also developing a lawsuit to lay on Palm Beach who sued him for having his flag pole too high. Once the flag becomes a sacred object then the pole is connected and then Trump wins yuge again. This all would be amusing if it were only happening to some other country, and even then perhaps not. What a revolting development this is. C. A. Riley.
There is some irony. The proper way to dispose of a worn, tattered, American flag is to burn it in a proper ceremony.
Not irony, merely a distinction with a difference. Dispose of it with respect, Nick. With respect.
belleweather, I hope you’re right, because Trump is flat ass wrong on this. However, you can see the America haters here, like the Canadian, are incorrigible.
It was a 5-4 decision the first time. With a new court it could be 5-4 the other way. Time to rethink it.
Courts DO NOT determine what my rights are Paul.
Marbury v Madison (1804) was a GD power grab and you and millions of Americans are too damn lazy and
dumb to learn the truth.
InalienableWrights – I agree with you about Marbury. However, who does decide YOUR rights?
We do. And there is little ambiguity.
We have all rights Paul We are the sovereigns.
InalienableWrights – who are this WE you speak of. Are they the special snowflakes in the colleges and universities? Are they the gang bangers who are hustling drugs? Are they the inmates in our local prisons? Who are WE?
You ain’t got no rights.
Your rights are what the SCOTUS says they are. Rights are exclusively enforced by courts and always have been. Pretty basic civics, your lamentations notwithstanding.
mespo – except for President Jackson, we had, as a group, agreed to follow the dictates of the court.
This is classic Trump and he knows what he is doing. Ask for the moon to get people discussing a real issue (Americans hating on America) and then ratchet it back to get what he actually wants.
You are totally correct. And I love your avatar of a picture of an actual bellwether.