Just before 7am on Tuesday morning, the President-Elect of the United States of America casually threatened to roll back the First Amendment.
The First Amendment to the US Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The first Ten Amendments to the Constitution, known as the Bill of Rights, were added on June 8, 1789 — just days before France’s Third Estate overthrew their monarchy, demanding “Rights of Man and the Citizen” — to guarantee various rights and freedoms to the people of the fledgling US. In the centuries since, some Amendments — such as the Third, which prohibits the quartering of soldiers in homes without owners’ consent — seem less pressing than they did in the 18th century; while others, such as the Second — which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” — have found their way to the center of today’s political discourse.
Yet the First Amendment remains sacrosanct, integral to movements from Black Lives Matter to the so-called “Alt-Right.” Of course, not all parties agree what that free speech should look like: whether it allows for hate speech, anti-Semitic or racist language, or threats of violence, or if such speech infringes on the rights of others and therefore can be curtailed. But the fundamental right to freedom of expression — and in particular, freedom to express dissent or controversial opinions — is widely understood to reside at the core of American values. This can be seen in cases as disparate as quarterback Colin Kaepernick’s refusal to stand during the National Anthem at NFL games, and chants at Trump rallies to “Drain the Swamp” — to oust government leaders. Trump himself gained his first political foothold by publicly questioning President Obama’s citizenship — a claim that was as false as it was legal to express. Movements across the political spectrum rely on the right to critique those in power. That right to dissent is a necessary precondition to the right to free speech. And free speech — a right our Founding Fathers saw as so foundational to their vision of the nation that they placed it before the right to bear arms to defend that nation — is a cornerstone of American freedom.
It’s not entirely surprising that the President-Elect would choose as the object of his ire the — literally — incendiary act of burning the American flag. In doing so, he leans on considerable historical precedent. Burning the flag emerged as a form of political protest during the Vietnam War, when critics lit the stars and stripes on fire at anti-war protests in the 1960s. In 1968, Congress passed the Federal Flag Desecration Law, which prohibited anyone from “knowingly mutilat[ing], defac[ing], physically defil[ing], burn[ing], maintain[ing] on the floor or ground, or trampl[ing] upon any flag.”
The U.S. Supreme Court took up the issue in 1989, after Gregory Lee Johnson burned an American flag outside of the 1984 Republican National Convention in Dallas, Texas, and was sentenced to a year in prison — just as Trump proposed in his early morning tweet. Johnson defended his act as “symbolic speech,” protected under the First Amendment’s guarantee of free speech and of the right to petition the government “for a redress of grievances.” Johnson won. Burning the flag, according to the Supreme Court’s 1989 ruling in Texas v. Johnson, is protected speech.
In the, Justice Anthony Kennedy acknowledged his distaste for the act of flag burning, even as he upheld the right to carry it out.
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. […] Our colleagues in dissent [remind] us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle.”
“With all respect to those views,” Kennedy wrote, “[…] symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
The import of the President-Elect’s tweet has less to do with the specific act he referenced — with the right to burn the flag — than it does with his belief in the right of the people to free speech, in the right to dissent without consequences. In her classic work, The Origins of Totalitiarianism, Hannah Arendt posits that ideology is the intellectual manifestation of terrorism — ideology extinguishes the legitimacy of those who hold different or critical beliefs. A primary difference between democracy and totalitarianism is each regime’s attitude toward dissent: democracy recognizes that is strengthened by dissent — by the freedom to express dissent. In contrast, totalitarianism, Arendt’s word for the authoritarian rule of government such as those of Hitler and Stalin, has no room for dissent — in fact, it fears it.
This week’s tweet is certainly not the first illiberal thing the President-Elect has done or threatened since November 8 — making a show of dropping the threat of a jail sentence against his political opponent (such a prosecution would be outside the purview of the president anyway), maintaining an active role in advancing his foreign business interests while President-Elect, and keeping his children as advisors (which, when he takes office, will be against the law) come to mind — and it will likely not be his last. But because it quietly threatens the soft core of American values — the first freedom protected in our Bill of Rights, and the very right intellectuals, scholars, and journalists will need most to call attention to illiberal acts in the years to come — it is among the most insidious.
It is poignant but fundamental that the flag protects those who hold it in contempt. It is also poignant but fundamental that the government — the Constitution and the man who, on January 19, will swear to uphold it — protect those who hold it in contempt. We can only hope the President-Elect will do so, in the White House if not on Twitter.
Peggy O’Donnell is a historian of modern European history, genocide, and human rights. She recently received a Ph.D. from the University of California, Berkeley, and teaches college history in New York. (Her opinions do not reflect the views of her employer.) More information can be found at her website, www.peggyodonnell.com. Peggy tweets at @theAccidentalAc.