President-elect Donald Trump is wrong about flag-burning.
And Hampshire College is wrong about flag-removal.
The American flag the college took down after it was set on fire in apparent protest over Trump’s election should be replaced and raised high. As the very symbol of a country that allows such protest to take place, it should be honored, not hidden away. If it’s burned again, it should be flown again.
So far, much attention has been rightly focused on Trump’s anti-flag-burning attitude; less on Hampshire College’s anti-flag action. With his usual flair for stirring his base while baiting the press, Trump tweeted, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Since flag-burning is well-established as constitutionally protected free speech, Trump’s tweet riled critics beyond the usual suspects. Even Senate majority leader Mitch McConnell broke with the president-elect, telling a reporter, “The Supreme Court has held that that activity is a protected First Amendment right. In this country, we have a long history of protecting unpleasant speech.”
That history as it applies to flag-burning is instructively recounted by Scott Bomboy, editor in chief of the National Constitution Center: In 1984, a man named Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas to protest the two presidential nominees of that election cycle, Ronald Reagan and Walter Mondale. Johnson was arrested, convicted of breaking a state law, sentenced to one year in prison, and ordered to pay a $2,000 fine.
His case went to the Supreme Court, and in 1989, the court ruled 5-4 in Johnson’s favor. His actions, the majority said, amounted to symbolic speech. No matter how offensive, he had the right to express it. “The hard fact is that sometimes we must make decisions we do not like,” wrote Justice Anthony Kennedy in a concurring opinion. In response, Congress passed an anti-flag-burning law — which the Supreme Court also struck down in 1990. Trump’s hero, Justice Antonin Scalia, voted with the majority in both flag-burning cases. As Scalia explained at an event a few months prior to his death last February, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
Neither is Trump. So for now, the punishment envisioned via tweet by the president-elect amounts to fantasy. Let’s hope it stays that way. Congress could pass another anti-flag-burning law, and a Trump-shaped Supreme Court could uphold it. Or Trump could push a constitutional amendment. Those are legitimate concerns. But taking down the flag, as Hampshire College chose to do, doesn’t change that reality. Hampshire College President Jonathan Lash said removing the flag was not a political statement, but rather was done to de-escalate tensions and promote dialogue. Perhaps, but the dialogue it launched plays to the stereotype of soft, spoiled, overly sensitive college kids who can’t tolerate the idea that democracy delivered a president with whom they disagree. And it generated more tension as hundreds of protestors called for the college to reinstate the flag. Veterans groups are also seeking to cut off federal aid to Hampshire College if the flag doesn’t go back up.
The flag should go back up and fly as a reminder that it stands for freedom — which includes the freedom to burn it as symbolic speech. As Justice William J. Brennan Jr. said, in the majority opinion for the 1990 case, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered and worth revering.”
Being against Trump means understanding what he does not know about the flag and free speech. That’s the lesson Hampshire College should be teaching its students.