Donald Trump is laying out his agenda: He wants flag-burning to be a crime, possibly resulting in a loss of citizenship or even a year in jail, he tweeted Tuesday morning.
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
He was likely referring to an anti-Trump protest at the liberal Hampshire College in western Massachusetts, at which an alleged flag-burning took place.
His statement can easily be interpreted as yet another inflammatory and distracting Trump tweet — there have been many, after all. But Trump’s calls for punishing flag-burners hinges on more substantial themes behind his political rise: an intolerance for dissenting voices and critique, and a willingness to turn a blind eye to certain inalienable rights afforded by the US Constitution.
Flag-burning, however unpatriotic, at its core is a form of expression that has repeatedly been upheld in the Supreme Court as such.
Trump just doesn’t seem to care — and that’s not new.
Flag-burning is free speech. Even the late Justice Antonin Scalia would tell you that
Trump is not the only politician to call for a criminalization of flag-burning. Hillary Clinton co-sponsored a bill banning flag-burning in 2005 while in the Senate. It was an attempt to equate the act to cross burning, which can be prosecuted as a violation of civil rights. The bill failed to pass the Senate by one vote.
Flag-burning has been a right upheld by the Supreme Court as a protection of free speech and expression as recently as 1989 in the 5-4 Texas v. Johnson decision. The late conservative Justice Antonin Scalia sided with the protester, holding that flag-burning is a form of “symbolic speech” protected by the First Amendment.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Scalia said in 2015, maintaining his position more than a decade later.
As the Washington Post’s Philip Bump notes, “it's absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of ‘free speech’ and ‘the First Amendment’ against the patriotism of people who find flag-burning unacceptable.”
Trump’s interest in the debate cements his long-documented willingness to disregard certain freedoms afforded by the Constitution, fueled by a temperament seemingly less rooted in a need to protect American patriotism, but rather in a desire to silence critical voices.
This is yet another show of Trump’s Nixonian hatred for dissenting voices
Last week, in an interview with the New York Times, Trump was asked if he was “committed to the First Amendment” — something that has been concerning to journalists as he’s threatened to “open up our libel laws.”
“I think you’ll be happy,” he told the room of reporters and editors. “Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.”
That the Times’ Mark Thompson felt the need to ask about a president’s commitment to a core tenet of the Constitution is a commentary on months of hostility between Trump and the press — and more broadly critical voices.
On the campaign trail, Trump has also repeatedly called for protesters at his rallies to be “thrown in jail,” and had demonstrators and journalists escorted out of his rallies and press conferences. During the campaign, he revoked press credentials to Washington Post, BuzzFeed, and other news outlets. As my colleague Dylan Matthews explained, it’s a mannerism similar to that of Richard Nixon’s:
This kind of targeting of the press is classic Nixon. His initial 20-member "enemies' list" contained three journalists: columnist Mary McGrory, CBS's Dan Schorr, and LA Times national editor Edwin Guthman. Nixon and his chief of staff, H.R. Haldeman, were recorded discussing how to "go after" Schorr; Haldeman mentions that he'd already gotten the FBI to look into him and had the IRS investigating Schorr and McGrory. "FBI agents around the country did twenty-five interviews on Schorr in less than six hours," Nixon biographer Richard Reeves writes.
Trump even blasted the audience of the musical Hamilton for booing Vice President-elect Mike Pence (who called the booing “what freedom sounds like”).
All of this suggests that Trump is not a big fan of people expressing their displeasure with him. One glance at his Twitter feed will demonstrate his animus toward dissenting or critical voices.
His position of flag-burning is no different.