Beyond the Burning Flag: A Brief History of the U.S. Government Suppressing Free Speech

It was a tweet heard round the world. In less than 140 characters, Trump revealed his lovably authoritarian side yet again. This time, the focus was on everyone’s free speech issue: flag burning. The plot twist: he thinks there must be a punishment for it, potentially revoking citizenship or a year in jail. Everyone’s freaking out, and rightfully so. But why weren’t we sooner?

Trump is undeniably a threat to our first amendment rights. But he’s not bucking tradition in doing so. On the contrary, there’s a lot of precedent for presidents acting on these sorts of impulses when it comes to flag burning and all the other ostensibly offensive things we say and do. They just didn’t have a chance to tweet about it.

For God’s sake, we couldn’t even get through the 1700s without giving the finger to the Bill of Rights. John Adams’ Sedition Act of 1798 attempted to stop writing or speech which was “false, scandalous and malicious . . . against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition” to the tune of a maximum $2,000 fine and a prison term of two or less years. Newspaper publishers like James Thomson Callender and congressmen like Matthew Lyon were jailed and fined, among others. It lasted for three years, after which Jefferson pardoned anyone still paying the price.

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Abraham Lincoln suspended habeas corpus for a period during the Civil War, shut down opposition newspapers and jailed dissenters. One of Lincoln’s Union generals, Benjamin Franklin Butler, brought the Louisianan William Mumford before a military tribunal and sentenced him to death for treason. More specifically, the treason he was responsible for was tearing down an American flag.

During both World Wars, similar measures were passed in defiance of constitutional rights. The Sedition Act of 1918 lasted two years and, like its great-great-granddaddy, punished those who “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States.” This time, the punishment was a maximum $10,000 fine and/or a maximum twenty years in prison. This one led to the imprisonment of quite a few people but perhaps most notably Eugene V. Debs, a five-time Socialist Party candidate for President, for speaking out against American involvement in World War I. In other words, Bernie better be watching his back these days.

When it came to FDR, the president established an Office of Censorship less than two weeks after Pearl Harbor. His internment of Japanese Americans is well documented but he also put Italian and German Americans into camps as well. On the flipside, in 1943, West Virginia State Board of Education v. Barnette said that not saluting the flag is allowable under the First Amendment, thus pissing off Colin Kaepernick critics for years to come.

Lyndon Johnson passed the Flag Protection Act in 1968 due to how many stars-and-stripes were being burnt in protest of the Vietnam War. Apparently, in Johnson’s America, you could draft the populace but you couldn’t burn the flag. This statute made it federally illegal to desecrate a flag with the punishment being a fine of $1,000 or less or a year or less in prison.

In 1989, the Supreme Court ruled in Texas v. Johnson that flag burning or desecration was a protected form of free speech. Only two states had laws in place agreeing with the court’s decision. Forty-eight had laws banning and punishing flag burning in some way less than thirty years ago. Since then, there have been numerous congressional attempts to pass an amendment overruling the Supreme Court’s decision.

Throughout the nineties and aughts, some iteration of this amendment passed in the House and was killed in the Senate five separate times. Ironically, the most recent attempt in 2005 was made with co-sponsorship from then Senator Hillary Clinton and included one year in jail as punishment. Of course, the revocation of citizenship clearly ups the ante a bit. As does the fact Trump’s language seems to indicate a desire to outlaw flag burning as a form of protest in general, whereas the Flag Protection Act of 2005 sought punishment only in scenarios when flag burning was meant to incite violence, intimidate a person or involved stolen flags.

So here we are in 2016 with President-Elect Trump tweeting his thoughts on flags on fire in between when he’s deciding whether or not giving the Secretary of State position to Gen. David “Second-Place-Email-Scandal-Winner” Petraeus is a good idea. What he tweeted is frightening and fascistic, to be sure, but it’s not totally unprecedented. In fact, it’s more precedented than it should be. One year in jail is mild compared to the twenty years you would’ve gotten in 1918 for saying bad stuff about the U.S.

The scariest element of Trump’s tweet—the most uncharted territory contained in its startling brevity—is the revocation of citizenship. This idea is taciturn in Lincoln’s suspension of habeas corpus, in Roosevelt’s unjust internment of people in work camps, because without our Constitutional rights, are we really citizens at all? But, as with so many other things, it is brazen, unmeasured and outspoken with Trump in a way it was hushed up and justified before.

It’s also coming at a time when there’s talk of a potential Homeland Security chief who wants to make imprisoning an exponential amount of people easier and indefinite. It’s a time where the President-Elect wants to pack Guantanamo Bay full with non-citizens and potentially revoke the citizenship of at least one type of dissenter. It’s a time where it’s easier than ever for the government to find dissenters, due to the revelations of people like Edward Snowden about our surveillance infrastructure. For that matter, it’s worth looking at how the Trump Administration may deal with him after releasing those revelations. If flag burning gets one year in prison and/or the revocation of citizenship and whistleblowing gets execution for charges of treason, what are the consequences for all the other forms of dissent and national critique around and between?

It’s especially frightening given the fact the U.S. is in the same “desperate times call for desperate measures” frame of thinking that puts civil liberties on the chopping block. The worldwide war on terror, the rise of ISIS, the shadow cast by Russia’s growing confidence as a world power and so on down the list have got us all scared. Desperate times do call for desperate measures but not the kind we’ve undertaken before. We need desperate measures like keeping people free even when fear is the order of the day, like ensuring the Constitution can’t be destroyed by any terror attack or chaotic world event, like remaining confident this is a country built on certain inalienable and fundamental rights.

Without the right to praise or critique a flag and all it stands for, the good and the bad, the great and the awful, what is it really worth?