DISCLAIMER: This article was first published on August 27, 2024
In a bold display of defiance against long-established First Amendment rights, Donald Trump recently reiterated his desire to criminalize flag burning despite the Supreme Court ruling that protects the act as free speech. Speaking in front of a lectern, Trump laid out his vision: “But they were burning the American flag. I wanna get a law passed. Everyone tells me, oh, sir, it’s very hard. You burn an American flag, you go to jail for 1 year. Gotta do it. We gotta do it.” He went further, addressing constitutional objections directly: “They say it’s not constitution. They say, sir, that’s unconstitutional. We’ll make it constitution. We’re gonna make it constitution. But you burn an American flag, you go to jail for 1 year.”
This isn’t the first time Trump has threatened the Constitution, nor is it the first time he has attacked free speech. His presidency was marked by repeated efforts to undermine First Amendment protections. He has suggested that libel laws should be overhauled to allow easier lawsuits against the press, famously branding the media “the enemy of the people“—an attack on the free press that is central to American democracy. Trump also floated the idea of “tearing up the Constitution” when it suited his political aims, including a suggestion to suspend constitutional norms following the 2020 election.
Donald Trump proposes making burning an American flag punishable by 1-year in prison.
In 1989, the Supreme Court upheld the right for protesters to burn flags after Gregory Lee Johnson did so at the RNC in Dallas. pic.twitter.com/qi87KUCWis
— FOX 4 NEWS (@FOX4) August 26, 2024
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SCOTUS and the Path to Overturning Precedent
Trump’s flag-burning comments come at a time when the current Supreme Court is increasingly willing to overturn precedent. With a 6-3 conservative majority, including three justices Trump himself nominated, the Court has already demonstrated a willingness to dismantle long-standing rulings. In 2022, the Court overturned Roe v. Wade, ending nearly 50 years of federal protection for abortion rights. More recently, the Court overturned the Chevron doctrine, which had guided federal agencies’ decision-making processes for decades.
Given this trend, it’s not far-fetched to imagine the Court taking up an issue like flag burning and reconsidering Texas v. Johnson, the 1989 case that affirmed flag burning as protected speech under the First Amendment. With this Court’s willingness to tear down precedent, Trump’s comment, “We’ll make it constitutional,” takes on a chilling tone. He may indeed find allies in a Court increasingly open to revisiting and overturning key rulings.
Historical Attacks on the First Amendment
Trump’s disregard for First Amendment rights has been a consistent theme. In addition to his proposals on flag burning, he has repeatedly attacked the press, threatened to revise libel laws, and suggested extreme measures that undermine constitutional protections. Early in his presidency, he called for “opening up libel laws” to make it easier to sue media organizations that publish unfavorable coverage. This attack on press freedom, combined with his frequent rhetoric branding critical outlets as “fake news,” represents an unprecedented assault on the free press by a sitting president.
In 2020, Trump escalated these threats, questioning whether parts of the Constitution should even remain in place. Following the 2020 election, Trump suggested that the Constitution could be disregarded to address what he falsely claimed was widespread voter fraud. His proposal to “suspend the Constitution” shocked both allies and opponents alike. His ongoing willingness to challenge foundational democratic principles is a pattern that critics say could escalate if he is re-elected in 2024.
A Court Poised to Empower Trump’s Agenda?
With a Supreme Court increasingly willing to strike down precedent, Trump’s threats to the First Amendment should not be taken lightly. Flag burning may be the beginning, but the willingness of this Court to revisit foundational decisions, such as Roe v. Wade and Chevron, suggests that other core rights could be at risk if Trump’s vision becomes policy. The judiciary’s new direction has given Trump and his allies a pathway to enact changes that were previously seen as unconstitutional, including a potential crackdown on flag-burning protests and other forms of free speech that challenge governmental authority.
As Trump’s remarks echo through conservative circles, the question remains: how far will this Court go in unraveling long-established constitutional protections? If his promises are any indication, the First Amendment could be under severe strain, with political dissenters facing jail time for what is currently protected expression.
Featured image via screengrab
