Horrible. Outrageous. Unconstitutional. Unserious? Funny? I know the first three reactions are right, and I hope the last two are as well.
I’m talking about President-elect Trump’s Nov. 29 tweet suggesting that American flag-burners should be jailed or lose citizenship.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Before I explain, let me make one thing clear: I strongly oppose any legislation that would create such penalties.
The flag is a symbol of our nation, the best in the world, and our freedoms. But burning it is also free speech. I believe Trump knows people don’t like flag-burners and that flag-burning is part of the free speech that makes our country great.
Why he tweeted what he did, I’m not sure. It could be that he’s just playing another joke on the media. After all, in 2005, Hillary Clinton was the lead Democratic sponsor of a bill to, yes, punish those who burn the American flag. Did we ever hear anything about that during the election? Or that Clinton voted for a constitutional amendment to gut the First Amendment’s free political speech protections?
Or it could be, as James Taranto suggests, a way for him to draw “attention away from consequential stories that might be awkward or damaging to Trump, such as the potential conflicts of interest posed by his businesses.”
Trump is not going to propose legislation that would punish anyone who burns the flag. If he did, it wouldn’t pass. Even if it did pass, the Supreme Court would rule it unconstitutional.
While the First Amendment is always under assault, two key members of the incoming Trump administration are good friends of free speech.
Vice President-elect Mike Pence is one. He proved this in 2006 when he was one of just 18 Republicans to vote against a GOP-backed bill aimed at shutting down Democratic-leaning advocacy groups. Not only did Pence vote against the bill, he tried to get his colleagues to join him in opposing the measure.
Over Thanksgiving weekend, Trump named Don McGahn as his White House counsel. McGahn did a fantastic job when he was on the Federal Election Commission. He successfully implemented many meaningful reforms there to protect due process rights and free speech. You won’t find a stronger advocate for First Amendment free-speech rights than McGahn.
Trump’s tweet is disturbing. But knowing that he’ll get advice on free speech from Mike Pence and Don McGahn makes me feel a lot better.
David Keating is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Center for Competitive Politics and was previously the executive director of Club for Growth. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
