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Left: Donald Trump (Allison Bailey/NurPhoto via AP). Right: Antonin Scalia (AP Photo/Charles Rex Arbogast, File).
Former President Donald Trump recently proposed stiff criminal penalties for people who desecrate the American flag.
The 45th president invoked the idea of time behind bars for such activities, long protected by the First Amendment, in response to a pro-Palestine protest in Washington, D.C., during a congressional address by Israel’s Prime Minister Benjamin Netanyahu on July 24.
Some of the protesters burned American flags — and raised the flag adopted by the Palestine Liberation Organization. Various other acts of vandalism occurred during the demonstrations.
“Rarely have we seen anything like this, and I think you should get a one-year jail sentence if you do anything to desecrate the American flag,” Trump told the hosts of Fox & Friends. “Now, people will say ‘Oh, it’s unconstitutional.’ Those are stupid people. Those are stupid people that say that. We have to work in Congress to get a one-year jail sentence. When they’re allowed to stomp on the flag and put lighter fluid on the flag and set it afire. When you’re allowed to do that, you get a one-year jail sentence and you’ll never see it again.”
That position puts Trump at odds with one of his heroes and forebears, the late Supreme Court Justice Antonin Scalia.
Trump’s model judge
“Justice Scalia was a remarkable person and a brilliant Supreme Court Justice, one of the best of all time,” Trump said when the 79-year-old conservative jurist surprisingly died in February 2016.
When running for president for the first time, Trump repeatedly promised to “appoint judges very much in the model of Justice Scalia.”
“His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms,” Trump continued in a eulogy for the man who popularized the conservative judicial movement subculture known as textualism. “He was a justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country.”
One of the freedoms Scalia worked to defend on the nation’s high court — at least twice in his life — was the right to burn the American flag. And, this was due, in Trump’s words, to Scalia’s “reverence for the Constitution,” not out of any sympathy for anti-government protests.
Old Glory and Joey Johnson
Burning the U.S. flag, nicknamed “Old Glory” — after a sea captain’s specific and storied flag of the same name — has been expressly legal since the landmark First Amendment cases of Texas v. Johnson and U.S. v. Eichman, which were decided in 1989 and 1990, respectively. And, in both instances, Scalia voted with the majority to keep flag burning a constitutionally-protected form of expression.
In 1984, First Amendment activist and Revolutionary Communist Party member Gregory “Joey” Lee Johnson was arrested for burning the American flag just outside of Dallas City Hall during the Republican National Convention.
As a large march ended with the chant of “red, white and blue, we spit on you, you stand for plunder, you will go under,” Johnson doused the flag with kerosene and set it ablaze. He later said the protest was a symbolic response to Ronald Reagan’s foreign policy in Latin America.
“The American Flag was burned as Ronald Reagan was being renominated as President,” Johnson said at trial. “And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.”
In the end, he was convicted, and sentenced to a year in jail and a $2,000 fine. He appealed all the way to the Supreme Court.
A 5-4 majority opinion found that Johnson’s treatment by the Dallas police and prosecutors violated his First Amendment rights.
Another burn ban bites the dust
Congress, angry at the ruling, quickly reacted and passed the Flag Protection Act of 1989. Johnson and his friends organized again. They staged a flag-burning protest two days later on the steps of the U.S. Capitol where they set fire to three American flags while chanting and popularizing the phrase “burn, baby, burn.” Meanwhile, another activist burned a flag in Seattle. Prosecutions under the federal law ensued.
Again, the issue went to the U.S. Supreme Court.
Justice William Brennan, who wrote majority opinions for both cases, in Eichman opined that the government had tried and failed to pretend the federal law was not about speech. During oral argument, the government’s attorney more or less conceded as much.
The new law, the court noted, sought to criminalize the conduct of flag burners based on the content of their message — which is protected as a form of symbolic speech. And, Brennan observed, content-based restrictions on such symbolic speech violate the U.S. Constitution.
From Eichman, at length:
The Act proscribes conduct (other than disposal) that damages or mistreats a flag, without regard to the actor’s motive, his intended message, or the likely effects of his conduct on onlookers. By contrast, the Texas statute expressly prohibited only those acts of physical flag desecration “that the actor knows will seriously offend” onlookers, and the former federal statute prohibited only those acts of desecration that “cas[t] contempt upon” the flag.
Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is “related to the suppression of free expression,” and concerned with the content of such expression.
“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering,” Brennan wrote.
The judgments in both Johnson, which invalidated 48 state laws against flag desecration, and Eichman, which invalidated the broader federal prohibitions, grouped three of the court’s legal liberals (Thurgood Marshall, Harry Blackmun, and Brennan), eventual moderate Anthony Kennedy, and Scalia together to form a majority.
Notably, Justice John Paul Stevens, later considered a left-wing jurist, voted to uphold the bans on flag burning in each instance.
Scalia did not provide a concurrence to explain his votes, but in 2012 remarked on the historical nature of those votes in comments to CNN.
“If I were king, I would not allow people to go around burning the American flag,” he said. “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.”
This is not the first time Trump has tangled with the intellectual ghost of Scalia on the issue. The Republican presidential nominee previously raised the idea of passing an “anti-flag burning” statute in June 2020 — at the height of the Black Lives Matter protests.
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