Our President-Elect is at it again, now talking about making flag-burning as expression a criminal offense, possibly resulting in loss of citizenship. There are issues with this, one of which is that it is beyond the scope of the President to make laws. That is a function of the Legislature. Not to mention the absurdity of punishing someone with loss of citizenship for exercising their constitutional rights. Then there is the fact that this is a very clear violation of the first amendment regarding free speech.
Let’s address the first amendment for a second. Is all speech protected under the first amendment? No, not at all. Like most rights, there are certain limitations. There are limitations on where you can freely speak or express yourself; on libel, slander, and defamation; obscenity; and speech designed to incite violence, as some examples. Each of these has detailed legal judgements that help (to some extent) to clarify what speech or expression is or isn’t protected in certain contexts.
So where does flag-burning fall along this spectrum? As it turns out, there is a specific Supreme Court ruling addressing this topic. Texas v. Johnson, 491 U.S. 397 (1989) makes clear that burning the flag as protest or other political expression is protected by the first amendment. Here is the summarized decision (with links, if you feel the need to get more detail):
(a) Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402-406.
(b) Texas has not asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O’Brien, 391 U. S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson’s expression of dissatisfaction with the Federal Government’s policies also does not fall within the class of “fighting words” likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court’s holding does not forbid a State to prevent “imminent lawless action” and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas’ interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O’Brien test. Pp. 491 U. S. 406-410.
(c) The latter interest does not justify Johnson’s conviction. The restriction on Johnson’s political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to “the most exacting scrutiny.” Boos v. Barry, 485 U. S. 312. The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone. Pp. 491 U. S. 410-422.
Paragraphs (b) and (c) make clear that the government at any level may not restrict speech solely on the basis of whether the speech or expression is objectionable. That makes stripping citizenship for flag-burning right out. Now, if the flag you are burning is not yours, or if it is on someone else’s private property, or on certain government properties, or if your handling of the burning flag is unsafe and likely to (or actually does) hurt people or property, then the state can intervene. If you are burning a flag that you purchased, in a forum designated as protected, handling yourself in a safe manner, and not deliberately inciting violence, then your expression is protected. (Based on the ruling, other forms of flag desecration are similarly protected.)
So again, I want to point out how absurd the notion is that one could have their citizenship revoked for exercising a right guaranteed to the citizenry. I also advise that we not dismiss this as just another bone-headed comment from someone who doesn’t know what he is talking about. He may, in fact, not have any idea about how the government functions or what rights are guaranteed under the constitution, but that does not render this suggestion harmless. This notion, of criminalizing speech and expression unsupportive of the state, is consistent with totalitarianism. This is not the first comment he has made to this effect. He has called for broadening of libel laws to allow people (like himself) to sue the press for any piece with which they disagreed. This type of law is intended to suppress the press, as they would not wish to endure lawsuit after lawsuit, even if they consistently won in court. This sort of maneuvering coerces the press to only provide coverage that is considered appropriate by the state.
Our President-Elect showed a great deal of disdain for many other rights protected by the constitution during his campaign, such as for religious freedom, privacy, and freedom from unreasonable search and seizure. Many of his cabinet picks are or have been supportive of similar policies themselves. And, unfortunately, there are some within the Republican-controlled Legislature that are amenable to writing legislation to restrict constitutionally enumerated rights. When Mr. Trump says he wants to enact laws that are blatantly unconstitutional we should take him at his word, and understand that he is likely to have help. We need to be prepared for many legal battles in the coming months and years in order to preserve our civil liberties.
And, again, if you voted for Trump but not because of his blatant bigotry and unconstitutional positions such as this one, this is your opportunity to prove it by helping to fight efforts to restrict protected speech and expression.
UPDATE: There is now circulating misinformation stating that Hillary Clinton supported banning flag-burning as expression in 2005. The Flag Protection Act of 2005, which never went to the floor of the Senate for a vote, did not seek to outlaw flag-burning. Instead it focused on specific criminal intent that might be associated with burning the flag. Here is the relevant text:
Flag Protection Act of 2005 – Amends the federal criminal code to revise provisions regarding desecration of the flag to prohibit: (1) destroying or damaging a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace; (2) intentionally threatening or intimidating any person, or group of persons, by burning a U.S. flag; or (3) stealing or knowingly converting the use of a U.S. flag belonging to the United States, or belonging to another person on U.S. lands, and intentionally destroying or damaging that flag.
So, this deals with inciting violence, intimidation, and theft. Not outright banning of a form of expression, and certainly no punishments as harsh as loss of citizenship.