While Democrats seek to reclaim the mantle of “freedom” from Republicans this election season, the GOP’s presidential nominee pushed for an unconstitutional punishment for those who exercise their freedom in a way he dislikes — that is, by burning the American flag.
Citing such behavior by protesters outside the Israeli consulate during the Democratic National Convention in Chicago this week, Donald Trump called for Congress to pass a law mandating a year in jail for anyone who protests in that manner.
The legal problem with that proposal is that it violates the First Amendment. The Supreme Court addressed the issue in the 1989 case Texas v. Johnson, when conservative icon Antonin Scalia joined the high court majority in deciding that a conviction for burning the flag was unconstitutional.
This isn’t the first time that the former president has advocated for such an unconstitutional punishment. Just last month, Trump did so after people burned flags while protesting Israeli Prime Minister Benjamin Netanyahu’s Washington, D.C., congressional address. And in 2016, as president-elect, he suggested that flag-burners be stripped of their citizenship.
It’s unsurprising that the man who flouted his constitutional oath the first time around should lack the understanding, appreciation or both of the law and the freedoms it secures. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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