Somebody needs to give anti-Israel protesters some tips on their PR. Agitators took to the streets Wednesday night to protest Israel Prime Minister Benjamin Netanyahu’s speech before Congress and decided that the best way to make their case to the public was to burn the American flag.
Suffice it to say, this didn’t go over well. Their tactics were roundly denounced by Democrats and Republicans alike. But, as often occurs when protests involve the burning of the flag, a round of free speech discourse was spurred, primarily by former President Donald Trump, who argued that this expressive act is not just contemptible but actually ought to be illegal.
“I think you should get a one-year jail sentence if you do anything to desecrate the American flag,” Trump said in an interview with Fox & Friends. “People will say, oh, it’s unconstitutional. Those are stupid people that say that. We have to work in Congress to get a one-year jail sentence.”
“All over the world, Putin and President Xi of China, all over the world they’re watching this .... That wouldn’t happen in their countries,” he continued. “It’s impossible for that to happen in their country.”
Taking offense at seeing people burn our flag is understandable. But when Trump wanders into the territory of wanting to criminalize this act just because it hurts his feelings, he is embracing censorship — and running right into a First Amendment roadblock.
To be clear, the protesters in question from Wednesday evening’s chaos can be punished for their actions because they took down and burned a flag that did not belong to them. This is vandalism and destruction of property. But the act of burning a flag itself (one you own) cannot be made illegal under our First Amendment, despite Trump’s advocacy otherwise.
It’s not only “stupid” people who believe this. It’s actually the conclusion of the Supreme Court, which in the famed case Texas v. Johnson, specifically ruled that flag-burning could not be categorically criminalized, writing, “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.”
No less a conservative legend than the late Supreme Court Justice Antonin Scalia, who Trump has praised many times, joined this opinion. Was he just “stupid,” too?
If Trump were only calling to criminalize the vandalism of American flags that do not belong to the vandal, that would be a different story. But he is not making that case. His remarks on Fox News were much broader than that, and he has advocated the blanket criminalization of flag burning for years.
One counterargument many Trump defenders made after his remarks drew scrutiny was that if it’s illegal to tarnish the LGBT Pride flag, then it should be illegal to desecrate the American flag. They cited instances where people were criminally prosecuted for burning or destroying rainbow flags or other rainbow displays.
But, again, in these cases, they were destroying property that did not belong to them. Thanks to our First Amendment, it is perfectly legal to buy a rainbow flag, stand in your front yard, and light it on fire. There’s no real inconsistency here.
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Whataboutism doesn’t change the fact that Trump’s comments demonstrate a disdain for free expression and a disturbing fondness for authoritarian governmental crackdowns. He’s correct that such unpatriotic displays wouldn't be tolerated in Russia, China, or North Korea. But that’s because those are authoritarian nations run by tyrants, not free countries run by leaders. That Trump would cite them aspirationally in this way should be highly alarming to anyone who values the U.S.’s traditions of liberty.
Even if Trump becomes president, a law criminalizing the burning of the flag is unlikely to pass, and if it did, it would just be struck down by the Supreme Court. So, the real problem here is not the practical effect of Trump’s position but the inconsistent commitment to the principle of free speech it reveals.
Brad Polumbo ( @Brad_Polumbo ) is an independent journalist, YouTuber , and co-founder of BASEDPolitics.
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