It a scene that is likely to prove quite familiar during a Trump presidency, Americans woke up Tuesday to discover that the incoming president took to Twitter to expose his ignorance of or disregard for the Constitution.
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
Criminalizing flag burning is unconstitutional, at least when the flag is burned as a political statement. As the Supreme Court explained in Texas v. Johnson, “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Moreover, there is no indication “either in the text of the Constitution or in our cases interpreting it . . . that a separate juridical category exists for the American flag alone.” If someone chooses to express a political message through flag burning, even if that message is contempt towards the United States, the Constitution protects that speech.
Justice Antonin Scalia, who Trump has held up as a model for his Supreme Court nominee, was in the majority in Johnson.More ...