Donald Trump has yet to ascend to the presidency and already through multiple actions seems poised to become a possible threat to Americans’ First Amendment liberties when he takes office in January. He has already threatened to strengthen libel laws to make it easier for public officials to sue journalists for unfavorable coverage, severely limited press access to his administration, and has now made headlines with a recent tweet about punishing flag burners as president.
But if Trump thinks a Twitter threat will hold much weight as president, he clearly is not aware of the enormous volume of common law precedent and constitutional provisions that prevent such punishment from ever happening. As this Politico article explains, there have already multiple Supreme Court cases which have all ruled flag burning as constitutional under a citizen’s First Amendment right to freedom of speech (even what the court deems “symbolic speech” like for example burning a flag in protest). Even staunch textualists (Supreme Court justices who base their decisions on a literal reading of the Constitution) like the late Antonin Scalia have sided on the right to protest over any possible unpatriotic concerns. Scalia was even quoted in 2015 as saying: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” And neither is President-Elect Donald Trump for that matter, because the very punishment he recommended for accused flag-burners in terms of “loss of citizenship” has also been struck down as unconstitutional by the Supreme Court in a 1958 case because it violated the Eighth Amendment protection against “cruel and unusual punishment.” As you may have guessed, criminal action (such as jail time) would be near impossible due to the Supreme Court’s unwavering stance on the issue – no lower court would be able to prosecute a flag burner without going against the Supreme Court’s authority of ‘stare decisis’ (i.e. lower courts, as well as the Supreme Court, are bound to follow the precedents SCOTUS sets).
So if Trump can’t really do anything, even as President of the United States, to punish protestors who burn American flags, then why is this tweet even a story at all? I would argue that the very threat itself, although legally hollow, is extremely worrisome as a journalist and should be concerning to all citizens who value free speech. It suggests that Trump has complete disregard for the Bill of Rights, or perhaps just doesn’t understand how constitutional rights work. As this MSNBC article notes, the only reason Trump even bothered to tweet so outrageous a claim was because allegedly he viewed a “Fox and Friends” segment about students burning a flag, and tweeted as a reaction. But as the author of the article Steven Benen points out, this too is concerning:
“…As far as Trump is concerned, if the president-elect disagrees with your constitutionally protected political speech, he envisions a system in which you may face imprisonment or the loss of your American citizenship. He casually mentions stripping political protesters of their citizenship rights as a remedy to legal speech Trump doesn’t like.”
Even top establishment Republicans who have been adamant supporters of Trump, like Senate Majority Leader Mitch McConnell, have disagreed with Trump on this issue, distancing from the president-elect where flag burning is concerned. Said McConnell on the matter to Politico, “The Supreme Court has held that that activity is a protected First-Amendment right, a form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter.”
It’s key to note that a ban on flag burning is not impossible, just that it has historically been near impossible to enact because it would require no less than a constitutional amendment. Though one has been proposed many times, most recently in 2005, but each time has not gained enough support to pass. And even with the current GOP-led Senate and House, it is highly unlikely that were another bill proposed that it would pass, because most all Republicans have asserted that flag burning, although an unsavory act, is a citizen’s right in this country.
Perhaps now would be a good time to mention this Trump interview on Letterman that happened just last year, where he quite literally contradicted his own views in the tweet, telling the late night host that interpreting flag burning as protected under freedom of expression was “100 percent right.”
While you could simply write this off as a typical Trump turnaround, trying to pander to the voters who elected him, this is no longer campaign season and we all need to recognize that Trump’s outlandish claims, whether on Twitter or not, have real consequences now. If Trump has an unfavorable meeting with a world leader and takes to social media to criticize and even insult that country, it could have devastating repercussions for the entire country (even dangerous ones). If there is any insight to be gleaned from this latest empty threat, it is that Trump needs to think long and hard before going public with policy changes or legislative agendas, because the stakes are incredibly high now.