Ken Paulson

Donald Trump is a master at unsettling the settled in 140 characters or fewer.

In a provocative tweet Tuesday morning, the president-elect declared “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

As with so many Trump tweets, it’s hard to know whether he’s seriously considering trying to overturn long-established constitutional principles. Sometimes it seems like he’s throwing a rock at a crowd of people just to see them scatter.

But Trump would do well to read Texas v. Johnson, the 1989 U.S. Supreme Court case that firmly established the First Amendment right to burn a flag as an act of free expression. It clocks in at more than 30,000 characters, considerably more than a tweetful.

That case centered on the arrest of Gregory Lee Johnson, who was arrested at the Republican National Convention in Dallas in 1984 after burning the U.S. flag to protest Ronald Reagan’s administration.

The 5-4 decision couldn’t have been more straightforward or more deeply steeped in common sense. We live in a great nation in which we’re free to speak out against government policies without fear of punishment. If we choose to make the same point by burning a cloth symbol, the core principles are the same, the court concluded.

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Tweeting proposals has some clear advantages for the president-elect. There’s no need for detailed policy papers and no annoying reporters to ask follow-up questions. One tweet ignites cable television and social media, and suddenly no one’s talking about his cabinet choices or potential business conflicts.

But let’s be clear. This isn’t real. Congress could pass a law punishing flag-burning, but there’s no likelihood the Supreme Court would overturn its 1989 decision or reverse a half-century of protection for symbolic speech.

Justice Antonin Scalia, the man Trump has described as a model for his future Supreme Court appointments, was among the majority that struck down the flag-burning prohibition. Last year, he revisited the decision, drawing on the distinction between his personal views and what the Constitution mandates. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said. “But I am not king.”

Justice John Paul Stevens, who voted to uphold the flag-burning ban in 1989, had clearly changed his mind by 2004, when he said, “Burning the flag conveys a far different message than it once did. If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise.”

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Without a Supreme Court reversal, proponents of a flag-burning ban would have to enact a Constitutional Amendment, meaning two-thirds support from both houses of Congress and ratification by two-thirds of the states. It’s a very difficult process and with good reason. Tampering with the “law of the land” is no small thing.

There’s some irony in the fact that this nation’s earliest flag desecration laws were designed to in large part to curb the use of the American flag in advertising and marketing. In 1907, the U.S. Supreme Court upheld a Nebraska ban on Stars and Stripes beer. Today, flags are ever-present in product marketing and this past summer Budweiser even marketed itself as "America.” Let’s drink to that.

Symbolic speech sometimes requires a little translation.

When someone burns a flag, he’s essentially saying “I disagree with our government’s policies.” When Trump tweets a message like this, he’s saying “Constitution? What Constitution?”

Ken Paulson is the president of the Newseum Institute’s First Amendment Center, dean of the College of Media and Entertainment at Middle Tennessee State University and a member of USA TODAY’s Board of Contributors.

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