Commentary Magazine

The First Amendment’s Fickle Allies

Demonstrators drag a burnt American flag during the Democratic National Convention in Philadelphia. (AP Photo/Alex Brandon)

Nearly a year and a half after he made what turned out to be a historic trip down the escalator, we should all know that to pay attention to Donald Trump’s tweets is to venture onto a surreal political landscape of his own making. So the fact that Trump’s tweet this morning about banning flag-burning has already engendered widespread liberal dismay and outraged headlines in newspapers like the New York Times is already a political victory for the president-elect. Despite having already been counseled by savvy observers not to take the bait every time Trump tweets, it appears the mainstream media is fated to go on playing his game indefinitely.

As our Noah Rothman noted earlier, an effort to reinstate a ban on flag burning is exactly the sort of thing that riles up conservatives and Trump voters while serving to distract the press from real stories, like his conflicts of interest. The more the media protests, the better it is for Trump as we repeat the same pattern established earlier in his candidacy when gaffes increased his popularity rather than sinking him.

But before we file this away as one more instance of Trump playing his erstwhile media tormentors for suckers, there is one element to the outrage about his tweet that needs to be noted. The left’s anger about Trump’s potential assault on the First Amendment is entirely selective. If Trump is to be denounced as a threat to the Constitution and the right of citizens to political speech, even if it is symbolic and offensive to most Americans, then what are we to make of the routine assault of Democrats on the Supreme Court’s Citizen United decision, which also upheld the right to political speech?

The court was on solid ground when it ruled in Texas v. Johnson that, however odious it might be, flag burning was a form of political speech that should be protected by the First Amendment. It should also be noted that, among those in the decision’s 6-3 majority, was the late Justice Antonin Scalia. His successor will be named by Trump, who has promised to choose someone who adheres to the same fealty to constitutional principles as Scalia.

If we are right to disdain Trump’s willingness to trash that decision to appease the sensibilities of his base, how much more outraged should we be by the Democrats’ belief in limiting the right to behave in ways that are also protected by the First Amendment? Burning a flag is, at best, a provocation and, at worst, an attempt to incite street violence. Buying an ad in a newspaper or on a television or radio station to advocate for a political cause or candidate is far more easily defined as the sort of speech that the Founders would have understood as representing normal political behavior. The Bill of Rights guarantees the right of the people to dissent against the government and to advocate their views. It does not provide license to disturb the peace.

If Trump is serious about reviving legislation to ban flag burning or seeking the overturn of Texas v. Johnson, he’ll be wasting what political capital he possesses on nonsense. But it is no more or less of an attack on the Constitution than the promises made by Hillary Clinton and virtually every other member of the Democratic Party to overturn Citizens United and to re-institute bans on campaign spending by independent groups.

Silencing flag-burners may be popular, but it is wrong. Seeking to restrict other forms of political speech—which will have the not unintentional effect of strengthening the power of the mainstream liberal media and protecting incumbents of all parties—may also be popular. It is just as wrong. The failure to note this fact today is just one more piece of evidence of the liberal media bias that created the backlash that elected Trump in the first place. The First Amendment needs no such fickle friends.

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