Political Science 4360
“Oh No, Trump Wants to Change Laws on Twitter Again…”
Just weeks after winning a tightly-contested and nationally-divisive presidential election, Donald J. Trump, the most controversial president-elect of my lifetime, ignited the Twittersphere with a sub-140 character post, proclaiming that “nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail.” To Trump supporters’ dismay, the Supreme Court of the United States ruled in the 1989 landmark case of Texas vs. Johnson that such an act is constitutionally protected. However, I myself would never burn a flag and have always had mixed emotions about this case; in my heart of hearts, or maybe my patriotic conscience, I simply believe flag burning to be wrong for the symbolic notions that it encapsulates, which falls in line with Chief Justice William H. Rehnquist’s dissenting opinion in the aforementioned case. But does Trump have a point: if the case were reexamined from a couple of different angles which I will propose and precedents set in the early seventies through late eighties were changed by our new hot-shot, orange-skinned, real-hair-having leader, could flag-burning become unconstitutional and federally punishable?
The primary opposition to Trump’s tweet comes from the Rehnquist Court’s decision in the case of Texas v. Johnson. Outside of the 1984 Republican National Convention in Dallas, a Mr. Gregory Johnson of the Revolutionary Communist Youth Brigade decided to protest the meeting by dumping kerosene onto a stolen American flag and lighting it on fire in the crowd. In context, Johnson was amongst a riot which was already in full-effect debating the election of Ronald Reagan and policies which his group believed would cause another World War. After the demonstration dispersed, a witness took the flag and buried it in accordance with military code, while other onlookers testified as being “incredibly offended.” At the time in Texas, such public desecration of any American flag was a direct violation of a Texas statute known as Tex.Penal Code Ann. § 42.09(a)(3), and Johnson was arrested, sentenced to a year in prison, and fined $2,500 accordingly. After appealing in the Fifth Court of Appeals in Texas and winning, his case made it to the Supreme Court on the ground that the First Amendment guaranteed him the freedom to express himself in this manner and that his constitutional rights had been violated. In a heated 5-4 decision almost a full five years after the “criminal” act, the Rehnquist Court ruled in favor of Johnson. Justice William H. Brennan wrote the majority opinion, which argued that burning of an American flag invokes the First Amendment’s protection that Congress shall make no law ... abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (U.S. Const. amend. I...