The Daily Gamecock

Column: Flag burning is protected speech

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At 3:55 a.m. on Nov. 29, President-elect Donald Trump tweeted that “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!” To label this tweet as yet another middle of the night rambling would miss the major constitutional conflicts Trump’s opinion runs into. In particular, Trump appears to have little understanding of the Supreme Court’s interpretation of both the First and Fourteenth amendments. For a man who claims that he “see[s] the Constitution as set in stone,” he knows terrifyingly little about it.

To understand the seriously misguided and, frankly, insidious nature of Trump’s remarks, we must take a dive into constitutional law. Texas v. Johnson was a landmark Supreme Court case that dealt with the legality of flag burning as a form of protest as it pertains to the First Amendment. The court ruled that the government may not “proscribe particular conduct because it has expressive elements.”This ruling invalidated all laws that prevented or punished flag burning as flag burning was found to be protected speech under the First amendment.

This assumes that the flag burning was in line with the Brandenburg v. Ohio ruling that “free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Texas v. Johnson was reaffirmed yet again in United States v. Eichman, as the court concluded that laws that prevent flag burning on the grounds that it is desecration of a national symbol runs in opposition to US Code 496 U.S. 310, 313–319 that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Now that we have discussed Trump’s utter ignorance in regards to the constitutionality of flag burning, we will dive into another area of his ignorance — citizenship. Trump appears to believe that a just punishment for flag burning would be a revocation of one’s citizenship, a punishment ruled unconstitutional by the Supreme Court. In Afroyim v. Rusk, the court ruled that “once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.” Under this, the only way to lose citizenship would be to voluntarily give it up.

The Presidential Oath of Office reads, "I do solemnly swear that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." Trump’s inability to even properly distinguish articles and amendments of the Constitution further highlights how nearly impossible it will be for him to carry out this essential role. His uniquely cancerous ignorance of the foundational principles of our freedom poses an existential threat to the bedrock of our republic. Americans have fought and died for constitutionally guaranteed freedoms since our creation, Trump’s utter disregard and ignorance for the most sacred of American values is affront to the very history of this nation.


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