President Trump raised some eyebrows among conservatives last week when he stated that he supported an amendment banning burning of the American flag. The Constitutional amendment was introduced by senators Kevin Cramer (R, N.D.) and Steve Daines (R., Mont.) on Flag Day. The proposed amendment calls for the “constitutional authority to ban the desecration of the United States flag. Trump resoundingly endorsed the amendment tweeting: “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!” Patriotic as this sentiment may be, however, it runs counter to the freedom of speech.
Perhaps no other sentiment better captures the spirit of allowing flag burning than Justice Antonin Scalia in the landmark decision of Texas v. Johnson. In this case, the Supreme Court ruled that a man named Gregory Johnson had a Constitutional right to burn the American flag during the 1984 Republican National Convention in Dallas, Texas. The late Associate Justice of the Supreme Court, Antonin Scalia, sided with the majority in that case. One year later, he sided against a federal law that banned flag burning in United States v. Eichman. Long known for his devout conservative beliefs and values, Scalia emphasized that flag burning is protected by the Constitution even if he fundamentally disagrees that it should be.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 at the National Constitution Center in Philadelphia. “But I am not king.” Indeed. In a 1944 speech to the House of Commons, Winston Churchill declared that America is “a land of free speech, Nowhere is speech freer – not even in England where we sedulously cultivate it even in its most repulsive forms.” As someone who restored the bust of Winston Churchill to the Oval Office immediately after assuming his presidency – and who recently wore a Churchill style hat while visiting London – President Trump needs to echo Churchill instead of King George III.