Donald Trump v. the First Amendment, part five – Washington Post

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The president-elect woke up Tuesday morning with a clear agenda before him. Poised to announce his pick of Rep. Tom Price to lead the Department of Health and Human Services and with a day of meetings slated — including one with onetime foe Mitt Romney — Donald Trump hopped on Twitter to talk about where his attention was focused.

Disparaging CNN and — more unexpectedly — reigniting the once-virulent debate over flag-burning.

Where this came from is anybody’s guess. There’s an operating theory among some that Trump throws out tweets like this to distract attention from something else, as though 140-character messages demand our total (100 percent) brain capacity. On MSNBC’s “Morning Joe,” host Joe Scarborough speculated that maybe Trump was tossing a bit of red meat to the angry social media lions before announcing that he would pick Romney as secretary of state.

The suggestions of this tweet and the context in which it was issued, though, make it far from just a simple distraction.

Flag-burning is not an issue that has occupied a central position in the American political consciousness of late. It’s absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of “free speech” and “the First Amendment” against the patriotism of people who find flag-burning unacceptable.

Some quick history is in order. Fights over how the flag is depicted have been fought at the Supreme Court for more than a century, including the 1989 decision Texas v. Johnson which established that burning the flag was a constitutionally protected act.

One of the justices who supported that 5-4 decision was Antonin Scalia, the jurist whose death earlier this year created the vacancy that it seems Trump will get to fill — with someone, he has said, he hopes will be “in the mold” of Scalia. Scalia also voted to protect flag-burning when Congress passed a national law hoping to avoid the problems of Texas v. Johnson — even though he found the practice to be repugnant.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said last year, adding an important disclaimer: “But I am not king.” In an interview with CNN, he explained the distinction simply: Flag-burning is a form of expression, and therefore is protected by the First Amendment.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

Congress has tried to work around the decision. Shortly afterward, it passed a law banning flag-burning, which was again thrown out (with Scalia’s agreement). A decade ago, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with now-Senate Majority Leader Mitch McConnell (R-Ky.) voting in opposition.

“If there is a bedrock principle underlying the First Amendment,” Justice William Brennan wrote in response to the decision to strike down the 1989 federal law, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Trump doesn’t seem to adhere to this idea. He has railed against the oppositional media repeatedly, suggesting at one point that he might “open up” libel laws to make it easier to sue the media. He disparaged protests earlier this month as being incited by the press and being illegitimate because the protesters were paid (a claim for which there’s no evidence). When protesters in Chicago disrupted one of his rallies, he suggested that they should be thrown in jail. His proposals to address the threat of terrorism often seem to tiptoe beyond the free expression of religion boundaries established in the Bill of Rights.

When Trump finds free expression offensive or disagreeable, he seeks to curtail it and, in some cases, impose harsh penalties. The suggestion that those who burn flags should lose their citizenship is remarkable in part because it’s such a drastic response — one that would itself rescind any number of legal protections to which the culprit would otherwise be entitled. Incidentally, this suggested punishment is barred as a result of a 1958 decision from the Supreme Court, as Louis Nelson notes at Politico.

We’ve often seen Trump dash off a Twitter opinion that goes no further. There’s a fair argument to be made that, in the absence of any broader debate or proposed policy, this tweet about the flag should be treated as a curiosity. But it comes on the heels of Trump tweeting about how the results of the election should be questioned because of fraud (something that, again, lacks evidence). It’s a pattern of pushing back against fundamental pillars of our democracy: elections, free speech, Supreme Court decisions. He has every right to do so, of course. If nothing else, that’s important context. And it reinforces a desire to treat those who oppose him or his values harshly, even when he lacks the power to do so.

Why now? Who knows. Given the attention he has paid of late to casting his opponents in a negative light (like those claims about “voter fraud” that were the subject of his tweets Monday), perhaps he wants to force them to defend an unpopular position. Perhaps he even hopes that protesters will appear outside Trump Tower and burn flags. That certainly wouldn’t hurt his efforts to rally support from otherwise indifferent Americans.

Anyway. Time for Trump to tick off the next items on his to-do list. Something about putting together a government? With the important stuff done, might as well move on to that.



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