Donald Trump’s horrifying post-election Twitter spree continued apace on Tuesday morning when the president-elect declared that flag-burning should be outlawed in the United States, possibly in response to reports that college students protesting his victory burned an American flag.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
First, the obvious: The Supreme Court has repeatedly held that flag-burning is a form of symbolic speech protected by the First Amendment. In 1989 and 1990, the court struck down state and federal flag desecration bans as unconstitutional censorship. It is “a bedrock principle underlying the First Amendment,” the court explained, that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Flag-burning is a quintessential form of dissent, a forceful protest against the United States itself. Such political expression lies at the heart of the First Amendment. “We do not consecrate the flag by punishing its desecration,” the court wrote in 1989’s Texas v. Johnson, “for in doing so we dilute the freedom that this cherished emblem represents.”
Second, the less obvious: The involuntary loss of citizenship for engaging in dissent would constitute an outrageous violation of the Constitution’s most critical guarantees. Free speech issues aside, revocation of a flag-burner’s citizenship without his consent would violate both the Eighth Amendment’s ban on cruel and unusual punishments as well as the Due Process Clause of the Fifth Amendment, which bars punitive expatriation.
Trump appears to believe that the government can revoke a dissenter’s citizenship—and, along with it, a panoply of constitutional rights, including the right to vote—because her speech is exceptionally noxious. This specious conception of citizenship as a privilege to be stripped of dissidents reflects Trump’s authoritarian impulse to control the thoughts of the citizenry by chilling and punishing dissent. Indeed, Trump even believes that citizens who fail to comply with the patriotic orthodoxy should be thrown in prison, a classic method of authoritarian indoctrination.
Third, the bizarre: Trump has repeatedly praised Justice Antonin Scalia’s legacy and insisted that he plans to appoint a justice in his mold. Yet Scalia was perhaps the court’s fiercest defender of the rights of flag-burners. He provided the fifth vote in Texas v. Johnson, the 5–4 ruling invalidating flag desecration bans, and dominated oral arguments in the case. From his perch on the bench, Scalia deftly revealed the contradiction at the heart of Texas’ argument: The government asserted that it banned flag desecration not as a means of censorship, but to preserve its status as a national symbol; Scalia pointed out that its status as a national symbol is precisely why its desecration is such a powerful, and protected, form of expression.
One final point: Trump’s tweet presents an important test for Republicans. In response to Democrats’ efforts to overturn Citizens United and restore campaign finance reform, many Republicans alleged that the Democratic Party wished to “repeal the First Amendment.” Now the GOP’s leader, the president-elect of the United States, has promoted a policy that would directly violate the First, Fifth, and Eighth Amendments. His proposal involves, quite literally, throwing dissenters in prison, nullifying their right to vote, and potentially expelling them from the country. All for expressing themselves in a manner Trump dislikes.
This unconstitutional crackdown on free speech has no place in American political discourse. Yet so far, only Senate Majority Leader Mitch McConnell, a longtime defender of flag-burning rights, has criticized Trump’s tweet with appropriate vigor. The silence or tepid ambivalence of other Republican leaders should alarm us all. These men and women would do well to remember the Supreme Court’s admonition against mandatory displays of patriotism—which is, unfortunately, more relevant today than it has been for decades. As Justice Robert Jackson wrote in defending Jehovah’s Witnesses’ right to not salute the flag: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”