Trump's Call To Punish Flag-Burning Proposal Goes Against Constitutional Law

NPR's Scott Simon talks with Yale Law professor Stephen Carter about Trump's statement on social media saying he would jail anyone who burned the American flag.

SCOTT SIMON, HOST:

President-elect Trump - in response to what was not clear - this week called for people who burn the American flag to be put in jail. Although the U.S. Supreme Court has said that flag burning is legal under the Constitution. We're going to turn now to Stephen Carter. He is the William Nelson Cromwell Professor of Law at Yale and a best-selling novelist and essayist. He joins us from Yale. Stephen, thanks so much for being back with us.

STEPHEN CARTER: Scott, it's always a pleasure. Thank you.

SIMON: Is there any doubt that burning the U.S. flag is protected speech?

CARTER: There is no doubt whatsoever. I don't know exactly where the president-elect got the idea that somehow this is something that could be banned. The Supreme Court voted in 1989 in Texas v. Johnson, 5 to 4, that it's a protected speech. And I know that 5-4 sounds like a very close vote, but what's interesting about that majority is how broad a majority it was.

Justice Brennan wrote the majority opinion. But the swing vote holding that it was protected speech was Justice Antonin Scalia.

SIMON: And President-elect Trump has often said he wants to appoint justices like Justice Scalia.

CARTER: I think that's right. And I would hope that anyone who he would appoint would have a very solid respect for First Amendment values. I think it's crucial to our politics and our democracy that we respect even protests that really get on our nerves or that really we find deeply offensive.

SIMON: But are we living in a time when people - and many of them on the opposite side, politically, from President-elect Trump - say they shouldn't have to put up with speech or accept speech that they find offensive, hurtful?

CARTER: Unfortunately, that sort of refrain is all too common today. People, of course, identify it with campuses. And there is a problem on campuses. But it's more widespread. And it's on the left and the right alike. There's a tendency to think that somehow the First Amendment is always a little bit less important than this other goal we're trying to achieve. But I'm a great believer, and I think the courts also believe, that you don't pursue great goals by shutting down arguments about them. You pursue great goals by persuading people on the other side that you're right.

SIMON: A school board in Fayetteville, N.C., upheld this week the 10-day suspension of a teacher named Lee Francis who, apparently talking about the same issues we're talking about here, stepped on the U.S. flag in his classroom to show his students what free speech looks like. Now, he was suspended. There are no criminal penalties. He hasn't been charged with anything. But I wonder what the teacher's demonstration and the board's reaction might show.

CARTER: (Laughter) Now, this is a very interesting case. He was trying to show them that all sorts of protests are legal, including, he said, you can abuse the flag, and that is a constitutional right - demonstrated it, stepped on it. A lot of the students were upset. A lot of their parents were upset. And he was suspended, and the school board upheld it. Here I think the law is a little bit tricky because it's very clear that a school can suspend a teacher or take other disciplinary action for certain kinds of offensive statements made in the classroom and so on.

On the other hand, in this case, much as you or I might find to step on the flag terribly offensive, it was - it seems to me - actually well integrated into the lesson plan. I think he was probably trying to shock his students. I think that maybe the best way to do that pedagogically, however, is to do something with a little balance. If you think your more conservative students are going to be shocked by the - you stepping on the flag, do something that's going to shock your more liberal students as well to illustrate to both sides in the classroom that shocking speech is also OK.

SIMON: Given the 1989 Texas v. Johnson decision is now precedent, could anyone be confirmed to the Supreme Court if they didn't recognize that it's the law?

CARTER: I don't think there are a lot of people out there who don't recognize that's it's the law. One thing that's really striking about when President-elect Trump made that proposal was how quickly legal scholars, lawyers, even politicians, a lot of them on the left and the right, all condemned it and all said that this is a fundamental, constitutional right.

So I don't think you'll find a serious candidate out there who thinks that flag burning is not a constitutional right. And if you do, I think it'd be hard to get that person confirmed. And I really hope that that's not someone who the president-elect ends up nominating.

SIMON: Stephen, are people less interested in free speech than they are in speech that makes whatever point they want to at this point?

CARTER: Sadly, that seems to be the case. As you know, I was a law clerk for the great Thurgood Marshall at the Supreme Court a long, long time ago. And one of the things that I always admired about him, he used to say I don't care what a man has to say to get elected. I care can you do business with him once he's there? And I think that we have a big problem now doing business. We have people constantly saying I can't even sit down and talk to anybody who takes this position or that position, and that's a terrible thing in a democracy.

SIMON: Stephen Carter of Yale, thanks so much for being back with us.

CARTER: It is always a pleasure. Thank you, Scott.

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