President-elect Donald Trump tripped alarm bells Tuesday morning when he suggested that flag burners deserved prison time or expatriation. Alarmist headlines, Tweets and hot takes ensued, fueling an online bonfire of hysteria.
The blaze is predictable though. Everyone knew 2016 would be a rough year for the First Amendment regardless of who won the White House. That’s because Hillary Clinton and Donald Trump both support criminalizing that form of free speech.
In 2005, while still a New York senator, Clinton co-sponsored legislation that would make flag burning illegal. And it wasn’t much different than what Trump proposed. Under Clinton’s proposal, burning Old Glory could cost a citizen $100,000 and even land him in jail for a year.
The only Democrat to sign onto the legislation, Clinton tried riding the fence between protecting free speech and protecting the flag. “I support federal legislation that would outlaw flag desecration, much like laws that currently prohibit the burning of crosses,” she told USA Today, “but I don’t believe a constitutional amendment is the answer.”
And the media rightly had a field day. Most prominently, Washington Post’s Richard Cohen declared Clinton guilty of “Star Spangled Pandering.” Ultimately, the bill failed to pass.
About as good at civics as he is at business, Trump made a similar mistake Tuesday. “Nobody should be allowed to burn the American flag-if they do, there must be consequences-perhaps loss of citizenship or year in jail,” the incoming executive tweeted.
But unlike Clinton, the next leader of the free world only floated the idea. He didn’t front any legislation. Only Clinton took an active step toward criminalizing free speech. Either way, the civics are sloppy.
The words of late Justice Antonin Scalia ought to extinguish any ongoing hysteria online. “If I were king, I would not allow the people to go around burning the American flag,” he said during a 2012 CNN interview, “however, we have a First Amendment which says that the right of free speech shall not be abridged.”
Yes, desecration of the American flag is odious. But cut and dry constitutional law maintains that it’s not illegal. Hillary Clinton and Donald Trump can’t change that because neither was made monarch on Election Day.
Correction: this story has been updated to reflect that Clinton co-sponsored the legislation.
Philip Wegmann is a commentary writer for the Washington Examiner.
