The following editorial first appeared in the St. Louis Post-Dispatch:
So now President-elect Donald Trump wants to strip citizenship rights from anyone burning an American flag and subject them to a year in jail. What is this? The 1980s?
Trump apparently woke up Tuesday morning and decided that weighing in on settled law would be a good idea. He reached for his smartphone and, before the sun was up, tweeted, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”
By sheer coincidence, Fox News was about to do a segment on a protest at Hampshire College in Amherst, Mass. The college had forbidden the flying of all flags after someone burned one in protest of Trump’s presidential victory.
So a stupid, but legal, decision by a small college in reaction to a stupid, but legal, decision by an individual prompted the president-elect of the United States to make a stupid, but legal, comment on social media.
Trump has an absolute gift for the inflammatory and distracting. Whether he has similar gifts for governance remains an open question. His notion of coercive, court-enforced patriotism is downright frightening.
The U.S. Supreme Court has twice ruled that burning a flag is a protected form of free speech. The first time was in 1989. When Congress reacted by passing a law outlawing flag burning, the high court in 1990 said the law was unconstitutional.
In both cases, Justice Antonin Scalia — the jurist whose views Trump says his Supreme Court nominees will reflect — voted with the majority. Scalia, who died in February, was a First Amendment absolutist.
Scalia took some heat over his flag-burning decisions but never backed down. Three months before his death, in an appearance at Princeton University, he said, “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.”
The court also ruled in 1967 that stripping someone of his citizenship rights cannot be used as a form of criminal punishment.
So as loathsome as flag-burning might be — and we agree that it is — it is a protected form of speech. The First Amendment was inspired by the great thinkers of the Enlightenment. One of them, the French philosopher known as Voltaire, is often credited with saying, “I disapprove of what you say, but I will defend to the death your right to say it.”
In fact it was his biographer, Evelyn Beatrice Hall, summarizing his views in 1906. But the point stands. Trump has capitalized on it. As an individual, he has a right to his views, however ill-informed or inflammatory. As the leader of the free world, he will need some restraint.
