President-elect Donald Trump’s latest Twitter-driven controversy arises from his dashed-off call for jailing or stripping citizenship from protesters who burn the American flag. As Philip Bump notes, this is hardly the first indicator that Trump is not what you would call a civil-liberties enthusiast. And as my colleague Jonathan Chait observes, this might be just another Trump distraction from the nasty stuff he is planning to do in the real world.
It is probably worth taking notice of the fact, however, that demagogic attacks on the First Amendment rights of people conservatives don’t like aren’t as broadly acceptable on the right as they used to be.
The first reason for this change in the politics of free expression is undoubtedly the defense of the First Amendment principles made by prominent conservatives, including some in the judiciary. With respect to flag-burning, the most emphatic rebuttal to Trump’s position on record comes from the late Supreme Court Justice Antonin Scalia, who stood with the majority in Johnson v. Texas, the 5–4 landmark decision in 1989 that struck down state laws criminalizing flag desecration. In a speech not long before his death, Scalia clarified his position:
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”
A SCOTUS justice with a more ambiguous relationship to conservatism, Anthony Kennedy, also sided with the majority in Texas v. Johnson, while conservative justices more attuned to the political branches of government, Rehnquist and O’Connor, went the other way. After a few years of regular fulmination against the SCOTUS precedent and regular House passage of constitutional amendments aimed at overturning the decision, the conservative passion for this particular form of hippie-punching subsided — until Trump brought it back this very week.
But something else has happened that helps explain why leading Republican politicians — including Senate Majority Leader Mitch McConnell and House Majority Leader Kevin McCarthy — have responded to Trump by reiterating their support for First Amendment protections.
The First Amendment has become the basis for a variety of high-profile conservative causes based on the belief that free expression is under attack by progressives. One, of course, is the “religious liberty” crusade, based on the idea that antidiscrimination laws violate the First Amendment principle of freedom of religious association. A second is the claim that any sort of campaign-finance regulation — from spending or contribution limits to requirements that donors must be disclosed — is a deadly threat to free speech. Whatever else it was, Citizens United was a First Amendment case. And the First Amendment is even central to the conservative attack on unions and collective bargaining. The pending Friedrichs v. California Teachers Association case, which the Supreme Court is very likely to resolve in the plaintiff’s favor once Trump has appointed another Justice, involves a claim that requiring a payment for representation by public-employee unions violates the First Amendment right to expression of union-hating employees who benefit from such representation.
When Trump does make that SCOTUS appointment, it will be, of course, to the seat held by Scalia, whom the president-elect has repeatedly described as the model for future Justices. Now that he has been made aware of Scalia’s position on flag-burning, perhaps Trump will make that issue one of his many flip-flops, memorable until the next one comes along.