Uh, Oh — Trump Thinks That Flag Burning Should Be Criminalized
Recently, president-elect Trump sent a tweet that ought to alarm the majority of Americans who voted for another candidate as well as most of those who voted for him. Here’s what Trump wrote: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or a year in jail!”
The very last thing we need in America is more activism meant to punish people for thinking the wrong things. Our college campuses are awash in left-wing thought control, whereby students who say or write anything that hypersensitive students or administrators find offensive can be punished. That’s bad enough. We do not need a right-wing counter-movement led by Trump doing the same.
One troubling aspect of Trump’s declaration is that it bespeaks either ignorance of or hostility to the Supreme Court’s First Amendment jurisprudence. We have considerable history with cases involving governmental efforts at stamping out dissent generally and involving the flag specifically.
In the early 40s, West Virginia punished and expelled students of the Jehovah’s Witness faith because they, following their religion, declined to salute the flag and recite the Pledge of Allegiance in school. The state had sound precedent for doing so, a Supreme Court decision (Minersville School District v. Gobitis) that permitted such punishment.
But when the Court heard a similar case in 1943, West Virginia State Board of Education v. Barnette, it wisely reversed itself. (As I recently wrote, stare decisis shouldn’t matter when constitutional rights are at stake and this is a good example.)
Justice Robert Jackson wrote in his majority opinion, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, religion, or other matters of opinion….”
Therefore, if students don’t want to salute or pledge allegiance to the flag for any reason, the only proper legal response for public officials is to leave them alone.
Move ahead to 1984. In a protest at the Republican National Convention in Dallas, Gregory Johnson doused an American flag in kerosene and set it on fire. He was arrested and charged under Texas law with the crime of desecrating the American flag. He was found guilty, but his conviction was overturned by the Texas Court of Criminal Appeals.
His case, Texas v. Johnson, made its way to the U.S. Supreme Court and was decided in 1989. In a 5-4 decision written by Justice Brennan, the Court held that the First Amendment protects symbolic speech such as burning the flag.
Does Donald Trump want to overturn Johnson so we can again prosecute people for not having the right thoughts about the flag? Evidently so, but I cannot see how that does any good. Sure, it would satisfy some of his most vociferous supporters, but it would be a terrible step backwards.
It would be a step in the direction of the same politically correct intolerance by leftists that so energized many Trump supporters. As American Enterprise Institute scholar Ben Zycher writes, “Does Mr. Trump recognize that he has endorsed the intellectual underpinnings of hate-crime legislation, the inexorable end-game product of the political rectitude that he campaigned against?”
Old flags may be burned if they’re tattered or soiled and that’s regarded as acceptable because it shows respect. But if someone burns a flag, no matter its condition, to make a statement against the government, then Trump thinks the burner should lose citizenship or go to jail because of the thought behind the action. That’s no different from demanding that a student be charged with a “bias incident” for speaking against some leftist shibboleth.
Criminalizing flag burning would just throw more fuel on the raging battle between left and right in America, encouraging those who instinctively resort to coercion rather than argumentation when they encounter people they disagree with.
Trump’s tweet also betrays the same mindset as Barack Obama, who repeatedly denounced another kind of speech that the First Amendment protects, namely political speech by corporations and unions. I’m referring to the Citizens United decision, where the Court held that free speech limits imposed by the Bipartisan Campaign Reform Act were unconstitutional.
Opposition by left-wingers to free campaign speech and opposition by right-wingers to the symbolic speech of flag burning stems from the same root – the belief that it’s all right to silence those who disagree with you.
If Trump doesn’t grasp the argument that governmental restrictions on speech are unconstitutional and socially harmful, you might think he’d at least get the property rights argument. After all, if someone like Greg Johnson wants to burn the flag, it is his own property. He should be allowed to do with it what he chooses.
Judge Andrew Napolitano, writing in the Washington Times, gets at the property rights element of the dispute: “You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.”
If an American were to buy or make a replica of the White House and set it on fire while capturing it on video for YouTube, should that be criminal? As long as the replica is his property, no.
Unfortunately, Mr. Trump isn’t a consistent defender of property rights, as we’ve seen in his support for the use of eminent domain. So that approach probably won’t work with him either.
Justice Jackson was right. There should be no official orthodoxies in the United States. Making speech or beliefs of any kind illegal is a very bad habit we need to break. That will require presidential leadership and it looks as though we aren’t going to get it from Trump.
Originally published on Forbes.