“No Brainer” Trump…

Several media outlets have reported on Trump’s enthusiastic embrace of a measure to outlaw flag burning. Congresscritters repeatedly introduce these bills, despite the fact that the Supreme Court ruled years ago that flag burning is protected under the First Amendment.

Ed Brayton commented on Trump’s history with the issue.

During the 2016 campaign, Trump said that anyone who burns an American flag — you know, all four of them in the entire country over the last few decades– should be stripped of their citizenship and be put in jail. Now two Republicans have proposed yet another bill to make flag burning illegal and he’s endorsing it on — where else — Twitter:

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

Coincidentally, No Brainer is the Secret Service’s code name for him.

You would think that an administration’s Press Secretary would try to intercede to protect freedom of expression, since all media–even rightwing outlets–rely on First Amendment protections to do their jobs. But of course, this is the Trump Administration, which has hired spectacularly dishonest specimens to fill that post. (My favorite description of departing Sarah Huckabee Sanders was penned by Bret Stephens of the New York Times, who wrote that Sanders “combined the sincerity of Elmer Gantry with the moral outlook of Raskolnikov.”)

Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people  (a category that rather clearly excludes the current occupant of the White House) can understand.

The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)

Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”

The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.

Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.

Brayton illuminated another common misunderstanding of what the First Amendment  does and does not protect, in a post about a Tennessee police officer who had advocated killing gay people.

Grayson Fritts, the Tennessee sheriff’s deputy/pastor who gave a sermon calling for LGBT people to be put to death, has been given a buyout and allowed to resign rather than be fired. And his boss says that’s because firing him would violate his First Amendment rights. I’m virtually a free speech absolutist, and I can say without hesitation that he is totally wrong….

If he was just a preacher who said that, I’d excoriate him for it but still support his constitutional right to say it. But as a government employee whose job is to administer justice fairly and equally, it’s a clear violation of his oath of office to think that some of the people he is charged with protecting and serving should be murdered by the state because he doesn’t approve of them. There is no free speech issue there.

A zoning administrator handing out religious tracts on the job is violating the terms of her employment, and a President trying to stifle views with which he disagrees is violating the terms of his. Free speech jurisprudence doesn’t protect them.

When elected officials–from the President on down–are abysmally ignorant of the constitution they swear to uphold, we’re in a world of hurt.


  1. “Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.”

    Free speech aside; when I researched countless web sites and asking veterans how to respectfully dispose of my years old, weather-beaten, tattered American flag ,I found that burning, in different manners and different site choices is the basic procedure. Told that different patriotic organizations often hold a ceremony when they have in their possession several flags donated for disposal yet I have found none either near me or who perform this service.

    It seems to be the individual’s or group’s reason for burning, the mind-set and lack of respect is at issue; not the act of burning the American flag. My poor old American flag is still respectfully folded in a plastic bag awaiting proper burial…or cremation.

    Another “It’s a puzzlement” issue.

  2. Congresscritters – Love this new descriptive word for them!

    Regarding today’s post – More and more Republicans like to think that only they can decide when and to whom the “rules” apply.

  3. There are also limits to free speech, such as incitement to riot, which gives power to the government over an individual’s liberty to say anything, anywhere. Nothing is absolute, unless you’re a member of the current administration, where apparently your immunity is absolute.

  4. the republicans have burned the flag everyday since,11/2016 , and no one said a thing..

  5. Who thinks we have earned the respect of others? What does our flag represent to other countries?

    I doubt respect is high on their list seeing the Middle East and Central America see us as terrorists or pirates.

    How about we gain back this lack of respect we’ve rightfully earned?

    That would mean removing the pests – “Congresscritters” – from our midsts. It would also require the elimination of a flag representing the interests of the few to expanding to represent the interests of the many.

    Trump is testing what he can and cannot do with his ultimate goal as authoritarian.

  6. Wow. Peggy reminded me of the constitutional limits to free speech including incitement to riot. Does that include a 3 a.m. Tweet from the President’s master bedroom at 1600 … or is the guy exempt from that, too. What a conundrum! (1st cousin to a puzzlement).

  7. Todd,
    For Trump supporters there is no difference between FEAR and RESPECT. Fools all.

  8. According to Wikipedia, at least, the secret service code name for Trump is “Mogul”. and “Muse” for his current wife. I could think of more apt names like “Dimwit”, but alas probably not going to happen.

    It is ironic that the same people who believe the second amendment was put in place to ensure the populace could overthrow a tyrannical government wish to put limits on free speech directed against the government. But consistency was never a strong point with the modern “conservative” movement.

  9. It’s the same thing about prayer in schools. So many think their right to free speech is being denied because they can’t say the Lord’s Prayer or Grace before meals. But those same numb skulls would be horrified if someone wanted to use a prayer from the Koran or The Vedas at their school.
    Jack Smith — love your comment.
    Theresa — The way Trumpers instill respect is through fear – which is the authoritarian mode. True healthy respect is based on seeing the wisdom of an idea and the integrity of an action. It is based on love as described in Corinthian’s. Of course, Trump and his minions know nothing about real respect.

  10. Anyone who thinks Trump has actually thought through this issue, doesn’t know Donald Trump. My guess is he doesn’t care one whit about flag burning, he just seized on the issue to appeal to his Kool-Aid drinking supporters.

  11. This essay is word to the chorus. We are sentient and actually believe in the rule of law and the precious document we call the Constitution. Republicans and Donald Trump think the rule of law and the Constitution is a hindrance … not that the respect or have read either.

  12. The Constitution, as we are finding out, is only as good as those who have taken an oath to protect and uphold it. Between lower courts stacked with right-wing tools and the Roberts court apparently eager to overturn precedent, who knows where things would go with a law with language constructed to put flag burning in with, say, inciting civil unrest?

  13. Jack is right on. “Republican” and “respect” for the flag or the Constitution or the country or we the people is oxymoronic. They hate us and this place and what we stand for because there’s no money to made from respecting any of it.

    They are consumed by make more money now regardless of the impact on any others ever.


  14. Kathy M. Any student can say a prayer in school on her/his own. As a retired teacher I saw students say a blessing before their lunch and prayer before my test. A prayer just cannot be school sponsered.

  15. Speaking of “NO BRAINS”… Trump has just committed to have Pence the Dolt as his 2020 VP candidate: “100%”. Coming from Trump, that means that Pence will now go to ground and remain silent….not that anything he says makes any sense, of course.

    So, the 2020 Presidential Republican campaign will consist of no brains, no new slogans or issues and lots and lots of B.S. and lies. Oh. I forgot all the personal attacks and snappy nicknames for the opponents. Are Trump supporters really THAT shallow? Yep.

  16. Like all dictators or wanna be dictators symbolism and slogans replace intellectual assessment. President Agent Orange is no different. Authoritarian Dictators share a personality feature of deep paranoia of others who could potentially outshine the Dictator. Thus, loyalty is prized over competence. Another feature of the Dictator is to divide even his followers, power must rest in the Dictator. This power must be constantly projected outward.

    Sadly, we seem to have no shortage of people willing to demonstrate their loyalty to President Agent Orange no matter how convoluted or twisted they have to spin, McConnell and the various spokespeople and press secretaries attest to this.

  17. As I mentioned above: Another feature of the Dictator is to divide even his followers, power must rest in the Dictator. This power must be constantly projected outward.

    President Agent Orange’s reckless conduct with Iran, pulling out of the Nuclear Deal, and now his Neo-Cons pushing him to attack Iran. No Declaration of War, or consulting with Congress. President Agent Orange makes it clear all power rests in his hands to attack Iran, militarily or with more sanctions.

  18. Trump just tweeted the following:

    “The detention of 500,000 Children has been worth it!”

  19. That Trump is dumber than a fence post is obvious. What’s surprising is that puts him close to the 40th percentile judging from the crowd following and supporting him.

  20. My favorite quote from “The American President” is perfect here:
    “America isn’t easy. America is advanced citizenship. You gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the “land of the free”.
    Remember that!

  21. Irvin — As a retired teacher in South Carolina, I witnessed my colleagues lead their classes (Grade 2) in the Lord’s Prayer before lunch — sounds like school-sponsored prayer to me.

  22. Todd: “Who thinks we have earned the respect of others? What does our flag represent to other countries?”

    Apparently, the entire world holds some sort of respect for the United States. Every time, without exception, some corner of the world demonstrates on the street or revolts against its government, their picket signs are addressed to us in English and almost no other language. Though citizens of the world know of Uncle Sam’s faults and sins, they also know of Sam’s generosity and willingness to take the part of the underdog. Which is not to say that the US is not giving them plenty of faults and sins with which to evaluate us. Not yet, but eventually, the world will begin to address their picket signs in Chinese or Russian.

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