Should Americans face criminal consequences for flag-burning? Donald Trump raised that prospect this morning in his usual forum for pot-stirring:
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
Trump had better not count on unqualified backing from the Republican Party in that effort. Rep. Sean Duffy (R-WI) appeared on CNN’s New Day to remind viewers that the Supreme Court had already weighed in on the issue — a generation ago. “I don’t think we want to make this a legal issue,” Duffy responded:
— New Day (@NewDay) November 29, 2016
CNN: Do you want to weigh in on flag burning, and whether or not this is a topic that we should be dealing with today?
DUFFY: Well, I think there are a lot of other issues that the country cares about. But in regard to flag burning, I love my flag and I love what it stands for, and I hate those who want to go out and burn it.
DUFFY: But I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it. I don’t think we want to make this a legal issue.
DUFFY: So I disagree with Mr. Trump on that, and the court is probably right.
The Supreme Court ruled on this issue in 1989 with a 5-4 decision in Texas v Johnson, which upheld flag burning as a legitimate exercise of free speech. The dissent was written by Justice John Paul Stevens, a member of the court’s liberal wing, who argued that the symbolic nature and value of the flag to the country outweighed the First Amendment rights of protesters. Antonin Scalia, whose mold Trump pledged to follow, concurred with the majority opinion written by William Brennan (which was also joined by Anthony Kennedy, for what that’s worth). The decision actually cut through the partisan divide on the bench with an ultimate effect of strengthening free speech.
It’s certainly possible for Congress and a President to give a flag-burning ban another try, and to see whether the court will be up for a challenge to stare decisis. Pro-life voters have wanted that exact same fight over Roe v Wade, and the Supreme Court has been known to change its position on occasion. Trump’s outburst envisions a rather draconian and unusual penalty, though, which would almost certainly earn a sharp rebuke from the courts — that of loss of citizenship. Generally, Americans cannot be stripped of citizenship for criminal acts, especially Americans who are citizens by birth. They can be stripped of citizenship for joining the government of another country, but that’s a civil act rather than a criminal punishment.
A better question is why we’re even having this discussion at all. It feels like a rerun of an old fight, the settlement of which both sides have largely accepted. As Duffy says, we have bigger fights on the horizon. Given the challenges to free speech for conservatives on campuses and in the larger arena, we should be fighting for freer speech rather than new restrictions on it, and pointing out the hypocrisies of speech codes and political correctness. Perhaps Trump wants to stir the pot and fire up his base today in preparation for a decision or two that will make them less than happy, and this is a kind of Bat Signal for the news cycle. Say, where is Mitt Romney going to be this afternoon and evening?