Not that it would surprise many, but President-elect Donald Trump contradicted himself recently.
Per usual form, Trump stirred up a hornets’ nest of controversy with a recent tweet, suggesting that flag burning—a form of Constitutionally-protected speech according to the Supreme Court—be criminalized.
“Nobody should be allowed to burn the American Flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail,” he tweeted.
Trump has also stated his interest in appointing a judge to the Supreme Court “in the mold of [Antonin] Scalia.” Calling Scalia a “great judge,” Trump will likely seek to appoint an ideologically similar candidate shortly after taking the oath of office.
Here’s the rub though: Trump cannot have it both ways.
Scalia was on the bench for two of the most important Supreme Court decisions regarding flag burning: Texas v. Johnson and U.S. v. Eichman. Both decisions reversed legislative efforts to criminalize flag desecration, establishing and re-establishing the act as protected free speech—and Scalia sided with the majority decision in both cases.
The History of Flag Burning and Why It Remains Legal
It all started with a guy named Gregory Lee Johnson, a member of a radical communist group known as the Youth Brigade. In 1984, the Republican National Convention was hosted in Dallas, Texas. In an effort to demonstrate his distaste of the Reagan administration, Johnson doused an American flag in kerosene, and lit it on fire.
As a result, Johnson was arrested and charged with the crime of “desecration of a venerated object” per Texas law. He was convicted, fined, and jailed under violation of Texas law. He appealed the decision, which eventually made its way to the highest court in Texas. His conviction was overturned because the state law that convicted him inhibited the free practice of his First Amendment rights.
The case—Texas v. Johnson—then went to the Supreme Court, which resulted in the landmark 5-4 decision ruling in favor of Johnson. Citing precedents of Stromberg v. California (displays of a flag constitute free speech) and Tinker v. Des Moines Independent Community School District (speech can not only be verbal, but also “symbolic”), the majority decision ruled that no political entity can abridge speech, whether verbal or symbolic.
Justice William J. Brennan presented the majority opinion (again, Scalia’s side):
“Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment.”
Brennan concluded, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”
The result: This landmark decision invalidated any public ban on flag desecration. In the United States, 48 of the 50 states had some type of ban on flag desecration. All of them were deemed unconstitutional by Texas v. Johnson.
Congress didn't like this—not one bit. So, in an attempt to be tricky, they passed a statute for the Flag Protection Act in 1989. The statute attempted to make the act of flag desecration a “content neutral” offense, meaning it removed any language involving the intent of the act.
According to the statute, it didn't matter if you were demonstrating malice toward the flag, nor did it matter if there were third party observers to the act. The goal was to remove all elements of free speech abridgment. The statute simply focused on the physical destruction of the flag, making it punishable by federal law.
So then another political malcontent comes along: an individual named Shawn Eichman. (Eichman was actually a “comrade in arms” of Johnson.)
The day that the Flag Protection Act went into law in 1989, Eichman took part in a protest where the group — take a wild guess — burned another flag. This time, they did so on the steps of the Capitol.
Predictably, Eichman got in trouble. And thus the cycle repeated itself.
The charges were dropped as judges cited Texas v. Johnson as precedent. The case was appealed by federal prosecutors, which sent the case directly to the Supreme Court.
In 1990, the court again ruled in favor of flag burning as protected speech, and produced yet another SCOTUS majority opinion, known as U.S. v. Eichman (again, Scalia sided with the majority). The Flag Protection Act was invalidated again.
Scalia: “But I am not king.”
Though an ardent critic of the act of flag burning, Scalia erred on the side of originalism in both of these decisions.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”
Though he considered a tough call to make, Scalia did conclude that the First Amendment — which, in his words, “says that the right of free speech shall not be abridged”— trumps his personal views about the act of protest.
While on the hunt to eventual fill the vacancy left by Scalia’s death, Trump must think deeply about the principles he wishes to demonstrate during his presidency. Whether the president-elect is wishing to establish a litmus test for possible SCOTUS appointees or just spit balling potential constitutional amendments to pass during his reign as president, Trump may need to reconcile his contradictory views about flag burning and constitutional jurisprudence.
The choice is simple: You can either criminalize flag desecration or appoint a Scalia ideological clone to the bench. You can’t have both.
Would Clinton have been any better?
Also, for the purpose of equal coverage, those who claim “Hillary Clinton would never suggest such a thing” should read the Flag Protection Act of 2005 which was co-sponsored by Clinton during her time as a senator. The bill designated flag burning as an act of terrorism and intimidation that should be punishable by a year in jail and a steep fine.
Cognitive dissonance occurs just as frequently on the other side of the aisle.