How Hawley, Marshall choose Trump over the First Amendment | Opinion
Flag burning is dumb.
It doesn’t happen all that often — a lot less often than you might think, actually — but when it does, it’s usually at a protest. And one of the reasons for a protest is to draw attention to a cause, to persuade your fellow Americans that the cause is righteous and just.
Otherwise, you’re just making a spectacle of yourself.
Well, burning an American flag is a terrible way to do persuasion. Obviously. The flag — and all it represents — simply means too much to too many people.
It’s definitely unwise. Not smart at all. But should it be illegal?
Nah. That’s why we have a First Amendment, which allows Americans to say and express all manner of unwise, foolish and unpopular stuff.
Sens. Roger Marshall of Kansas and Josh Hawley of Missouri disagree.
Both have eagerly signed onto President Donald Trump’s idea to criminalize flag-burning protests. It’s a proposal he made, shockingly enough, amidst a national wave of protests aimed at his authoritarian-minded rule.
“People that burn the American flag should go to jail for one year,” the president said last week. “And we’ll see if we can get that done.”
Hawley jumped on Trump’s bandwagon almost immediately.
“If you burn the flag in furtherance of a crime, then you get an enhancement to your sentence,” Hawley told The Washington Examiner. “If you incite violence by burning the flag, if you put other people’s lives in danger by burning the flag, then you get penalized for it.
“I completely agree with President @realDonaldTrump,” Marshall added on social media. “If you burn the American flag you deserve a year in jail.”
So much for free speech.
Delegitimizing No Kings protests
The Supreme Court ruled all the way back in 1989 that burning the American flag is speech protected by the First Amendment. You know who joined that ruling? Justice Antonin Scalia, one of the most ostentatiously conservative judges in American history.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia reportedly said years later. “But I am not king.”
Trump, it’s fair to say, has a rather different view of his own royal prerogatives.
It’s important to note here what Trump, Hawley and Marshall are likely trying to accomplish with their notion of simply dispensing with the First Amendment when they don’t like it.
First, they’re trying to delegitimize anti-Trump protests. By putting burning flags front and center, they’re trying to paint all the president’s opponents as un-American weirdos who deserve the contempt of right-thinking people like, well, Trump, Hawley and Marshall.
That’s unfair, of course.
Just ask the millions of Americans — many of them carrying U.S. flags — who marched in Saturday’s anti-Trump “No Kings” demonstrations around the nation precisely because they love their country and worry for its future.
Second, they’re trying to scare Americans out of joining those protests.
Talk of criminalizing protest — or one possible element of protest — signals that those demonstrations are dangerous, potentially illegal and best to be avoided. Missouri Gov. Mike Kehoe was probably trying to send the same message, incidentally, when he unnecessarily called out the National Guard in response to Saturday’s entirely peaceful marches.
What a silly, petty thing to do.
Hawley, a former law professor, probably understands First Amendment case law better than Trump or Marshall. That’s why he included all those conditions — about inciting violence and endangering other people — on his support of criminalizing flag burning.
Of course, you can already go to jail for inciting violence or endangering other people.
Criminalizing flag-burning is just a penalty for wrong-think, then. Trump, Marshall and Hawley know that. Burning the flag is almost always not a smart idea. But making it illegal is even worse.
Joel Mathis is a regular Kansas City Star and Wichita Eagle Opinion correspondent. He lives in Lawrence.