Trump’s flag-burning tweet ‘troubling’ for its First Amendment ignorance

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The New England First Amendment Coalition is deeply troubled by President-Elect Donald Trump’s recent statement calling for the imprisonment or loss of citizenship of those who burn the American flag. While Trump’s comments may reflect the feelings of many citizens, they perpetuate a dangerous misunderstanding about the breadth of the First Amendment and the protection it provides all Americans.

The flag burning controversy began last month when Hampshire College removed the flag on its Amherst, Mass., campus after a protester set it on fire. The burning of the flag and its removal altogether by college administrators set off a national debate over the flag’s symbolic meaning and the constitutional right to express oneself through flag burning. President-Elect Trump weighed in on Twitter by calling for those who burn flags to face “consequences — perhaps loss of citizenship or [a] year in jail!”

The U.S. Supreme Court, however, has twice upheld the First Amendment right to burn the flag. Those two rulings — Texas v. Johnson in 1989 and U.S. v. Eichman in 1990 — confirmed that however offensive one may find the burning of the American flag, such expression is protected speech.

In Johnson, the court recognized that “free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. . . . 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.”

There is a purpose to this First Amendment protection that is in the interest of all Americans regardless of their political affiliation or sensibilities: By protecting one person’s offensive speech now, we are defending the right of us all to speak freely later. We are reserving the right to determine for ourselves how to best communicate with others. Justice Antonin Scalia, who served on the court for Johnson and Eichmanexplained it this way:

“If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress.”

There is a long line of First Amendment cases that support this type of freedom. During World War II, a group of Jehovah’s Witnesses refused to salute and pledge their allegiance to the flag, an act considered highly offensive to many at the time and likely to many still today. But the Supreme Court in West Virginia State Board of Education v. Barnette recognized the need to separate government from individual expression:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy. . . . One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Supreme Court Justice Oliver Wendell Holmes famously said that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

It may not be easy at times, but it is incumbent on us all to show tolerance for this “thought that we hate” — and to demand that our leaders do the same.

Justin Silverman is Executive Director of the New England First Amendment Coalition, an organization formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. Its members include lawyers, journalists, historians, academics and private citizens.

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