Trump Breaks With Scalia On Flag Burning

President-elect Donald Trump this week took to Twitter to suggest that burning the American flag should be illegal, and result in “loss of citizenship or [a] year in jail!” That opinion flies in the face of the legal mind Trump claims to admire most, the late Supreme Court Justice Antonin Scalia. In two separate cases, Scalia joined rulings that reinforced flag burning as a mode of expression protected by the First Amendment. In 1989 the Court ruled in Texas v. Johnson that Gregory Lee Johnson’s right to free speech protected him from criminal punishment for burning the flag at the 1984 Republican National Convention in Dallas. “Johnson was convicted for engaging in expressive conduct,” Justice William Brennan wrote in the ruling. “The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction.” In response to that ruling, Congress passed the Flag Protection Act of 1989, which the Supreme Court struck down in U.S. v. Eichman, with Scalia again joining the majority. In a speech last year, Scalia used flag-burning as an example of how textual interpretation of the Constitution guided his legal philosophy: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said. “But I am not king.”