Constitutional Law

On Flag Burning, Trump Differs With Scalia but Agrees With Clinton

The justice Trump admires twice voted to overturn criminal penalties for flag burning, which Clinton later tried to reinstate.

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As Jesse Walker noted this morning, Donald Trump thinks flag burning should be criminalized, notwithstanding two Supreme Court decisions saying such expressive activity is protected by the First Amendment. Both rulings were joined by Antonin Scalia, the late justice whom Trump says he wants to replace with someone similar.

"Nobody should be allowed to burn the American flag," Trump tweeted. "If they do, there must be consequences—perhaps loss of citizenship or [a] year in jail!" Asked about the comment on CNN, Trump spokesman Jason Miller denied that such a policy would be unconstitutional. Flag burning "is terrible and it's despicable," Miller said. "It absolutely should be illegal."

The idea that an act of protest could be offensive but nevertheless legal is apparently beyond Trump's limited understanding of the Constitution. But in the 1989 decision Texas v. Johnson, five members of the Supreme Court, including Scalia and Anthony Kennedy as well William Brennan, Thurgood Marshall, and Harry Blackmun, ruled that the First Amendment precluded criminal punishment of Gregory Lee Johnson for burning a U.S. flag during the 1984 Republican National Convention in Dallas. "Johnson was convicted for engaging in expressive conduct," Brennan wrote for the majority. "The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

The following year, in U.S. v. Eichman, the same five justices overturned the Flag Protection Act of 1989, which Congress passed in response to Johnson. "Government may create national symbols, promote them, and encourage their respectful treatment," Brennan wrote. "But the Flag Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact. We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures [all of which the Court had deemed protected by the First Amendment]. '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.' Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."

Scalia later cited the flag burning cases to illustrate how his textualist approach to constitutional interpretation sometimes led him to rule against his personal inclinations. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said in a speech last year. "But I am not king."

The idea that justices should not simply vote according to their tastes or policy preferences seems foreign to Trump, who in a debate with Hillary Clinton last month promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade. Not that Clinton, despite her legal training and years in public office, was necessarily preferable to Trump on constitutional grounds. She also seemed to view justices as legislators in black robes, arguing that they have an obligation to "represent all of us," oppose "powerful corporations and the wealthy," and stop "dark, unaccountable money" from "distorting our democracy."

Clinton even tried to ban flag burning after the Supreme Court had ruled against such laws twice. Like Trump, she thought a year in jail would be an appropriate punishment. Then again, Clinton did not suggest that flag burners should lose their citizenship—a penalty the Supreme Court has said Congress is not authorized to impose.

NEXT: Donald Trump Suggests Flag-Burners Should Lose Their Citizenship

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  1. Do you guys ever communicate? Or did this really merit two consecutive posts?

    1. Their orders from grundzentralkommand must have crossed wires or something. Rest assured citizen that someone will suffer the ultimate penalty for the unforgivable breach of allowing two writers to opine on the same topic.

      1. It’s redundant. Not a big deal, just seemed silly. Don’t be such a twat about it.

        1. Hugh is the commentariat’s very own twat, which is why I both love and fear him. I want more of Hugh – much, much more – and yet I fear the consequences of my desire.

          1. Yield to your desire Crusty, and live forever within bliss.

    2. Do you guys ever read the post, the first sentence of which references the other?

      1. Do you guys ever read the post

        REEDING IZ 4 FAGGITS & CUCKS!111!11!!!!!!!

  2. Yeah, but Hillary’s law would have only prohibited flag burning if it was done ‘with the primary purpose of intimidation or inciting immediate violence.’ I.e., hate speech! So that makes it okay, you Trump-loving losertarians!

    /progs

    1. I’m pretty sure incitement of violence and intimidation were against the law (under the right circumstances) before “hate speech” was even a thing people thought about.

      Of course, making a special law about the flag is stupid, unnecessary and pointless.

      1. Regardless of the legal pretext used, if we want to make America great again, we need to crack down on flag-burning, and we need to do it fast. If “satire” is involved in it, we can increase the penalties. Surely no one here would dare to defend the outrageous “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “parody” case? See the documentation at:

        http://raphaelgolbtrial.wordpress.com/

  3. Flag burning and Citizens United are good 1st Amendment litmus tests.

    Pretty much all American politicians fail, which suggests that a majority of Americans fail.

    1. If you put the First Amendment up for a national vote tomorrow it would lose, and it would lose badly.

      1. I think this goes for most of the amendments in the Bill of Rights. 2nd would be closer, but would still lose.

      2. I’m not so sure it would lose if you just put the text up for a vote. I think that most people still think that they respect free speech and all that.

        If you asked “should hate speech be protected speech” or “should fake news be allowed in all cases” you might get a different result.

      3. Well, if California secedes-expect the entire Constitution to be put up as ballot questions.

    2. Principals over principles

  4. No, justices have an obligation to be an impenetrable bulwark against each and every usurpation of individual liberty by the executive and legislative branches. If that means down goes the USA, so be it. Its the freedom, stupid, not the nation state that must be preserved.

    1. The Supreme Court is not responsible for protecting citizens from their electoral decisions… unless they are. It’s hazy what with all the penumbras and emanations only we can see. –Roberts

    2. So you’re saying that the Constitution is a suicide pact.

      I can dig it.

  5. HEY LOOK OVER THERE!

    *assistant rides elephant onto stage*

    1. and Reason is distracted by the jangling keys just like the rest of the media

  6. Don’t make me regret supporting Trump over Hillary.

  7. If you put the First Amendment up for a national vote tomorrow it would lose, and it would lose badly.

    No shit. That’s why I cringe whenever anybody suggests a Constitutional Convention. We’d end up with something the Cubans would ridicule.

    1. Because 100% of them could read it.

      1. God, I love the Cuban literacy thing. Really illustrative of just how morally and intellectually bankrupt the left is. BUT WHAT ABOUT MUH WORDZ

        1. Literacy is important so everyone can read your propaganda.

    2. But I would still get to say things I want to say, right?

      1. Of course, Fist. Only those other people, the ones who say bad things, would be punished.

      2. We respect the 1st Amendment; but respecting the 1st Amendment doesn’t mean we forget about common sense word control.

      3. But I would still get to say things I want to say, right?

        He said the First Amendment, not the Fist Amendment.

        1. The Fist Amendment to the Constitution would do so many things it would make your head swim. Actually, the first thing it would do is clarify that the idiom is, in fact, swim and not spin.

  8. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said in a speech last year. “But I am not king.”

    Cowardly Scalia unqualified for office. Should be arrested and removed from bench. Sad!

  9. If you want to burn a flag you bought,I don’t care,on your own property. Don’t burn it on someone’s property that doesn’t want you there,or a sidewalk or street. I an burn trashcan or a tire as a protest. Open burning is illegal in many areas.

    1. I can’t burn,

    2. Yes, flag burning should be treated exactly the same way that starting any similar textile fire would be treated.

  10. As a veteran, I don’t condone desecration of our flag. However it’s still just a symbol, so it doesn’t get me all that angry. What pisses me off is the fucker that keeps taking a shit next to my mailbox. I’ll kill that motherfucker, if I ever catch him/her.

    1. The Night Pooper is back?

      1. Never left. Just slows down in the winter months.

        1. Poop on the exact same spot. If it’s an animal, it will get the hint. If that doesn’t work, buy you a cheap game camera and set it up near there.

          1. If it’s STEVE SMITH, prepared to be rapesquatched.

      2. Man, I hope that’s a dog or some other 4-legged creature.

  11. As I noted in the other article, banning flag burning is NOT some fringe idea. It is a very mainstream idea. Those of us who defend free speech in totality are actually on the fringes, sadly. It is dangerous to assume that Trump is just trolling and nothing will ever come of his proposal to ban flag burning. The last time Congress seriously debated the issue, a constitutional amendment to ban flag burning came only one vote short of passing Congress, to be sent to the states for ratification. And when the anti flag burning laws were struck down in 1989, 48 of 50 states had them on the books. Plus it fits perfectly with Trump’s entire populist theme of doing the bidding of “real patriotic Muricans” rather than those snooty Harvard-educated globalist elites and those smelly hippies who secretly hate America.

  12. Even if it wasn’t protected expression, burning a flag harms nothing and no one and shouldn’t be illegal beyond any violations of fire safety rules.

    People put too much into symbols. It’s just a piece of cloth. Flags are for identifying what countries ships are from and knowing where your people are on a battlefield. If you think it represents your country in some deeper way that is threatened by its desecration, you need to reexamine what you think is important because you are really missing the point.

    1. The flag is a symbol, as is the act of burning it. Symbols are given power by people. Alone, a symbol is meaningless, but with enough people, burning a flag can change the country.

      -paraphrased

        1. V for Vendetta when he’s explaining blowing up the parliament building.

  13. Trump is the perfect symbol of the American public in 2016:

    1. He has no idea what he’s talking about
    2. His entire persona is based on bragging and material status symbols
    3. Despite his fondness for likening boarding school to military service, he has no DD214
    4. He completely misses the point of America

  14. burning a flag harms nothing and no one

    But- TEH FEELZ!

    1. You jest, but that is the problem. Burning some colored cloth really doesn’t harm anyone. Burning this symbol could incite lunatics to do something harmful because they believe this symbol represents them personally.

      I don’t agree with that belief, but there it is.

      (I also don’t believe that destroying the flag in any way should be banned)

  15. I do not like the flag being burnt or other symbols being destroyed in protest. I do believe it should be legal to do so. I’m glad I live in a Country that allows this. Tell me how many other Countries would allow this to happen?

  16. I popped over just to see how you guys were handling this development. You don’t disappoint: normalize it by blaming Hillary Clinton, a person not remotely connected to the statement under discussion. Well done. Freedom thanks you.

    1. Who forgot to lock the gimp box? 😛

      1. Good point, Reason is hypocritical by remaining ideologically consistent and criticising both sides:

    2. I found a NYT article from 2005 which blames the Reoblicans for Hillary’s proposing this legislation. Maybe you could adopt that talking point.

      1. Maybe Reason could find it in their power to criticize Trump’s unconstitutional nationalistic sentiment on its own terms without doing a pathetic David Brooks false equivalence routine.

        1. Maybe, just maybe, its a relevant point that she is an equally shitty and horrible human being who doesn’t think you should have certain first amendment rights and the hand wringing from people like you is a smidge hypocritical.

          And maybe you could acknowledge the fact that nobody here has defended what he tweeted, but I know that’s asking a lot.

        2. unconstitutional nationalistic sentiment

          How is it unconstitutional to be nationalistic? Seems like a contradiction as the Constitution defines the nation.

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