The perennial debate over the right to burn an American flag lit up this week with an early morning tweet from President Trump.
Trump, in support of an effort by two Republican senators to outlaw flag burning, tweeted he was “all in” for a “strong BAN on burning our American Flag. A no brainer!”
“A no brainer!” That careless phrase is the most dangerous thing the president said.
Surely, backing any amendment to the Constitution deserves a little bit of “brain,” doesn’t it? Certainly, we can all agree that overruling the Supreme Court merits a smidgeon of consideration?
I graduated from Harvard Law School in 1995, and I’ve lectured there for more than 20 years. I’m no constitutional law expert. But I can tell you without hesitation that the President’s willingness to govern without thought or reflection is totally unacceptable. All Americans deserve better.
Authoritarianism isn’t American
Trump’s ill-considered remark smacks first of a power grab by a leader intent on eviscerating checks and balances. With that simple phrase, and under the guise of patriotism, he disrespects this country’s highest court. All the way back to 1919, the Supreme Court in Schenck v. United States wrestled with limiting free speech. They established in that case the well-known standard that you can’t falsely yell fire in a crowded theater. That decision wasn’t made unilaterally by the president but by an intensely deliberative and cautious body.
Legal principles have evolved since 1919. We have categories like protected speech and permissible speech. But the point remains that our founders didn’t want a King or an Emperor. They created branches of government for a reason.
The current president rejects that idea. He admires leaders who aren’t accountable, either to other government institutions or the electorate, for what they say and do. He takes pleasure at disregarding our democratic system. Why? Because he believes, as he told the country when he accepted the Republican nomination, that “I alone can fix it.”
The second problem is his absolute ease in choosing who needs to follow the law, and who doesn’t. The constitutional prerogative to enforce “equal protection before the law” means nothing to him. This should frighten all Americans.
What are today’s standards that must apply in the same way for everyone? The first one comes from the 1969 case Brandenburg v. Ohio, where the Supreme Court forbid people to use speech to incite immediate violence. Under Brandenburg, for example, you can’t encourage a mob to go attack someone. The second, and most important to the issue at hand, is the law established in Texas v. Johnson in 1989: burning an American flag is symbolic speech protected by the First Amendment. It’s a constitutional right.
Trump wants to apply the law in one way to ban flag-burning, but in another way to allow speech with which he agrees. He says burning the flag is a call to immediate violence. That it intends to direct a mob to take immediate harmful and lawless action.
Using those identical criteria, how would you interpret the following examples if you wanted to apply them equally across groups?
- Leading large, fired-up groups to chant “Lock Her Up!”;
- Telling an electrified crowd at a campaign rally to “rough people up” or “get them out of here” and offering to pay their legal bills;
- Permitting Nazi flags and swastikas in a charged political march;
- Calling the media the “enemy of the people.”
Remember that Heather Heyer was murdered at that march in Charlottesville. CNN has evacuated their building twice because of credible bomb threats. Inciting violence is not a joke.
Trump says that flag-burning isn’t protected speech because it’s likely to incite violence. But when you apply equal protection under the law, then surely all of these examples should also be outlawed in the same fashion.
It’s a dangerous regime indeed when the “Ruler” gets to decide who is bound by the law and who isn’t. It’s more unacceptable still when that ruler wields his power so thoughtlessly.
Debates over what our Constitution means by free speech are worth having. We should think about how far our rights extend, particularly if extending them can potentially hurt others. But our precious values and magnificent Bill of Rights demand actual debate. We can’t stand for anything less.
No, Mr. President, this isn’t a “no brainer.”