President-elect Donald Trump demonstrated his authoritarian impulses once again on Tuesday with a call for the criminalization of dissent. In the early morning, he took to Twitter – his favorite platform for exercising his own right to freedom of expression – to proclaim that burning a U.S. flag should be punished by “perhaps loss of citizenship or year in jail!” This was reportedly inspired by news that someone had burned a flag at an anti-Trump protest on a college campus.
Observers were quick to point out some constitutional basics of which our future president is apparently unaware: (1) burning the flag is political expression protected by the First Amendment (as even Trump’s favorite Supreme Court justice, Antonin Scalia, recognized) and (2) even if it could be criminalized, the government cannot punish you by revoking your citizenship.
One would hope that once Trump was reminded or informed that the Constitution he’s about to take an oath to protect forbids punishing political dissent, he would back down. Instead, his communications director went on CNN to pronounce that “flag burning should be illegal. End of story. … It’s completely despicable.”
But despicable expression is constitutionally protected in the United States. We enjoy more robust protection than anywhere else in the world of the right to express views that are unpopular or even hateful and harmful. Other constitutional democracies take a different approach, balancing the right to freedom of expression against the rights of those who stand to be harmed by that expression, and therefore permitting bans on things like Holocaust denial, swastikas and religious and racial hate speech. But in the U.S., the cure for despicable speech is supposed to be more speech – criticism or condemnation, rather than censorship or criminalization.
Trump, however, has openly pined for laws more like the United Kingdom’s when it comes to free speech, claiming during the campaign that he would somehow “open up” America’s libel laws and sue the media for covering him negatively. It’s unlikely Trump would in fact prevail against the media under U.K. law given that he objects to media coverage that is truthful, but he seems to have abandoned that plan anyway. Asked by The New York Times last week about his comments on libel laws, Trump explained that he thought The Times would be “OK” under his administration because somebody had explained to him that “softening up those laws” could result in Trump being sued more often.
It was a rare acknowledgement from Trump that speech laws are supposed to go both ways, but the moment was fleeting. Trump doesn’t want European-style restrictions on false or harmful speech or even social norms that require civility. He relishes his freedom to attack those he disdains while demanding only adoration for himself – a privilege that only dictators enjoy.
Trump rejects First Amendment values whenever the speech at issue wounds his ego. When thousands took to the streets after his election to express their shock and fear, he whined it was “Unfair!” as though his win entitled him to our reverence. When the cast of Hamilton spoke for those who felt threatened during Trump’s campaign, he suggested the theater should be “safe” from critical speech and demanded the actors “Apologize!” Trump called Mexican immigrants rapists and claims five men exonerated of sexual assault by DNA evidence are guilty, yet he threatened to sue the women who accused him of sexual assault for speaking out. To Trump, being fact-checked or questioned about statements he’s on record making is being “treated very roughly.” The media is “crooked” for daring to report that he has been raising his business interests in meetings with foreign leaders.
Trump’s hypersensitivity to the injuries that come with freedom of expression doesn’t extend to others. A campus flag-burning led him to propose jailing or expatriating dissenters, but he hasn’t, for instance, proposed banning white hoods in the wake of the KKK announcing a rally to celebrate his election. (That didn’t even warrant a single tweet, angry or otherwise, from our incoming ranter-in-chief.)
Trump has steadfastly refused to accept responsibility for the role his speech has played in emboldening supporters who have antagonized and threatened minorities and women in the wake of his election, while portraying himself as persecuted by any criticism aimed at him.
Perhaps Trump is having some confusion about what his new job entails. As a CEO, if he didn’t like the speech of an employee, he could shut her up or fire her. But that isn’t how being president of the United States works. Trump works for us now. We get to say mean things about him and march in the streets, and he doesn’t get to lock us up or throw us out of the country for offending his delicate sensibilities. Welcome to America, Mr. Trump.