In 1984, the communist revolutionary Gregory Lee Johnson set fire to an American flag at the Republican National Convention held in Dallas and was promptly arrested. Texas had a law on the books that prevented the desecration of any “sacred object,” one of which was the American flag. After a series of legal appeals, the case eventually made it to the the Supreme Court in 1989. The Court ruled in a 5-4 decision that flag-burning was protected speech, and thus invalidated anti-flag-burning statutes in 48 states. Though the Court has made it abundantly clear that flag-burning must be considered a form of symbolic free speech, as late as 2013 legislation had been proposed in the House and Senate by several members to re-criminalize the act nationwide through a Constitutional amendment. All of these appeals have failed, and rightfully so. Flag-burning remains a hot-button issue, but the writing seems to be on the wall when it comes to its legality. Even so, our president-elect decided to weigh in on the issue, offering his hot take in a late-night Twitter storm:

“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 Trump on Twitter, November 29th, 2016)

Where to start? Isn’t “dissent the highest form of patriotism?” You’d think a president would be familiar enough with his forebears to recognize that Jeffersonian quote, but we certainly live in different times. Rhetoric such as this demonizes dissidents and re-sanctify sacred symbols that have long been the subjects of protected speech. The idea that the proper response to flag-burning is not only time in prison, but removal from political membership suggests that there are dark clouds gathering on the horizon for the First Amendment.

But our president-elect hasn’t just weighed in on flag-burning. He’s also concerned himself with freedom of the press. In October, after the New York Times published an article detailing various allegations of sexual assault against him, Mr. Trump’s lawyers issued a statement which was as ignorant of constitutional law as it was indignant. It called the paper “libelous” and “defamatory,” and claimed that the publication had absolutely no right to publish such a story. While the Times was completely in the right, considering Trump is not only a national figure but (then) a presidential candidate, this instance is further proof that we must be concerned with the prospect of slowly eroding First Amendment rights.

It was another Supreme Court case that gave the Times and other papers license to print such information in the first place. In “New York Times v. Sullivan”, a unanimously ruled 1964 case, the Court elaborated that speech of “public interest” — that is, about a public figure (like a presidential candidate), could be published by said newspaper without fear of libel charges. But say that the information the paper published was wrong, the paper would still be protected as long as it was unaware of the information’s inaccuracy at the time of publishing.  Justice William O. Brennan’s opinion in that case sums this principle up quite well: “[public discourse] may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” The Court’s decision was a bold proclamation that freedom of speech and the press are the cornerstones of democracy. But our current president-elect just doesn’t seem to share that sentiment. In his ideal world, expanded libel laws prevent newspapers of record from publishing information he considers to be mean and libelous. Considering his record — failed business ventures, sexual assault allegations, questions of racism during property development — coupled with his pitifully fragile ego, it should be no surprise that the press gets under his skin. The concern now, however, is that he has the power to do something about it. I fear that with three or more absences on the Supreme Court in the coming years that our freedom of speech will be slowly, but surely, eroded by reactionary justices in the coming 25-30 years. Though his screams about hot-button issues like flag-burning and libel may just be attempts to whip up his electrified base into a fever pitch, it still suggests the horrors his presidency may bring for freedom of speech and anyone who asks loaded questions.

-Max Fenton ’18