This morning, President-elect Donald Trump took to Twitter to advocate for draconian punishment for burning the American flag:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Trump did not say what inspired his proposal, but it comes just days after a college in western Massachusetts decided to stop flying all flags, including U.S. flags, after someone there burned one in protest of Trump’s election victory over Democratic presidential nominee Hillary Clinton.
Hundreds of veterans and others gathered Sunday to protest the decision by Hampshire College in Amherst, Mass., to remove the flag.
Flag-burning is an act of symbolic speech, just as waving a flag is expressive. Under longstanding Supreme Court precedent, prohibiting expressive flag-burning is beyond the power of the government.
It should be noted, however, that the Supreme Court’s protections of expressive flag-burning don’t prohibit consistent enforcement of broader, content-neutral laws or rules. Let’s take the Hampshire College incident as an example. (While Hampshire College is private, and not bound by the restrictions imposed by the First Amendment, it voluntarily commits itself to respecting freedom of speech, so the First Amendment serves as a useful baseline here.) Hampshire College would be perfectly justified in punishing a student for stealing the flag and burning it. It could also prohibit anyone from having any open fire on campus, regardless of what they’re burning. But it could not, consistent with its dedication to freedom of speech, prohibit students from engaging in speech simply because that speech offends others.
That’s the standard set by decades of Supreme Court precedent in cases like Texas v. Johnson (1989), U.S. v. Eichman (1990), and Street v. New York (1969), the last of which concerned a law that made it unlawful to merely say insulting things about the flag. The government cannot set aside symbols for special solicitude under the law. Nor can the offense caused by burning a flag be a justification for banning the practice; expression is often intended to offend. Restricting speech based on its offensive nature is an open-ended invitation to restrict any speech that offends anyone, anywhere, so long as most people agree with them. As the Supreme Court noted in Texas v. Johnson:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
It’s not clear what path, exactly, Trump would take to accomplish his goal, or even if it’s a serious suggestion that will prompt further attention from his newly-appointed administration. We can hope that it is unlikely that Trump would make overturning Texas v. Johnson a litmus test for appointing judges or justices to the Supreme Court. And litigators can defend against attempts to enforce unconstitutional laws that remain on the books.
Regardless, free speech advocates don’t have the luxury of declining to take the incoming president at his word. Even if the Trump administration doesn’t seriously pursue a flag-burning amendment, the President-elect’s choice to use the bully pulpit to advocate such restrictions is a powerful starting point for imposing restrictions, and for pushing the needle of public opinion. Calls to criminalize flag-burning have fallen on sympathetic ears on both sides of the aisle in Congress, which has shown a willingness to pass unconstitutional restrictions on speech. Louder calls will increase the likelihood that such efforts will eventually prevail.
The front lines of defending speech will, it’s important to note, almost always involve defending expression that offends many, if not most, people. The power to ban burning a flag, after all, is the power to ban waving a flag, but it’s rarely flag-waving that people—and governments—find objectionable. The power to limit speech because it offends is the power to limit almost any speech. Those calling for limits on freedom of expression should consider how such limits and rationales will be used or expanded.
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