Burning Flags And Trump Tweets -- Freedoms and Limitations

 

“Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!”

President-elect Donald Trump, tweeting on November 29, 2016

Trump did not say what specifically inspired his words, but they come just days after Hampshire College in western Massachusetts decided to remove the American flag from the campus's main flagpole after someone there burned one in protest of Trump’s election victory over Democratic presidential nominee Hillary Clinton.

The flag was not outright banned from campus as some popular media sites claim. And, the campus did not announce that the flag was a symbol of oppression; The flag was not removed in protest of Donald Trump.

Before the flag was raised again, however, someone took the flag down and burned it. Hampshire explained:

“We intended to raise the flag again this morning, on Veteran's Day, also out of respect. Hampshire is home to a multiplicity of perspectives and life experiences, and among us are both students and employees who have served (and currently serve) in the military. However, this morning we discovered that the flag was burned overnight and, as a result, veterans and others in out community will come to campus to find the flagpole empty. We are deeply saddened that the flag is absent and the reason for its absence.”

(Dan Evon. “Flag Learning.” snopes.com. November 23, 2016.)

I hate to see anyone burn the American flag in protest. The flag is perhaps the strongest symbol of American identity and national pride. It deserves respect. To see someone desecrate it and all for which it stands is particularly repulsive.

However …

Mr. Trump needs to understand that his tweet counters a cornerstone of freedom for citizens of this country. Even while we view those who burn the flag as despicable, misguided protesters, we cannot assume they are criminals who deserve a harsh punishment. Although the issue provokes a controversial debate over the national symbol, free speech is protected as is protection from cruel and unusual punishment.

The Supreme Court has twice affirmed the right to desecrate the American flag as a form of free speech in cases before the high court in 1989 and 1990.

In “Texas v. Johnson” (1989), the Supreme Court ruled 5-4 that flag burning was a form of "symbolic speech" protected by the First Amendment. The ruling came after an appeal from Gregory Johnson, who had been convicted by a Texas court of violating a state law that prohibited the "desecration of a venerated object" such as the US flag.

The man Trump reveres – the late Justice Antonin Scalia – sided with the protesters. He said he based his ruling on a “textual” reading of the Constitution.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 in Philadelphia. “But I am not king.”

(Louis Nelson. “Trump calls for jailing, revoking citizenship of flag-burners.” Politico. November 29, 2016.)

Then, in “United States v. Eichman” (1990), the top court again affirmed the right to burn the flag when it ruled 5-4 that the Flag Protection Act of 1989 -- passed by Congress in response to the Johnson decision -- was unconstitutional.

Reverence for the flag is ingrained in every schoolchild. The flag is so revered because it represents the land of the free, and that freedom includes the ability to use or abuse that flag in protest. As the supreme symbol of the land, the flag also represents the utmost vehicle for protest.

Trump's next unguided point -- Can the United States strip legally a person's citizenship? No. A 1958 Supreme Court decision rejected the practice of stripping U.S. citizenship as a form of criminal punishment. 

Also there is Afroyim v. Rusk (5–4 decision) in 1967. The court's majority held that "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof." Justice Black wrote ...

"'All persons born or naturalized in the United States ... are citizens of the United States....' There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.”

(“U.S. May Not Revoke Citizenship, Court Says.” Los Angeles Times. May 30, 1967.)

The fact that Trump wants to curb First Amendment protections is distressing, to say the least. It is a pattern worth noting. The flag tweet follows his prior opposition to free speech – blacklisting reporters who fell out of favor with his campaign and his suggestion that he would “open up” libel laws to make it easier to sue the news media.

(John Wagner. “Trump suggests loss of citizenship or jail for those who burn U.S. flags.” The Washington Post. November 29, 2016.)

If Donald Trump wants to serve as president, not as king, he must respect the law, and he should refrain from tweeting like some half-baked, uniformed dissident. These kinds of outbursts simply deepen the divide he has already created. Naturally, now Trump will defend his comments without regard for concession. That is his modus operandi – to speak without thinking, rebuke all who oppose his statements, and refuse to correct his own misspeaks.