Outside the 1984 Republican convention in Dallas, a small group of protesters from the Revolutionary Communist Youth Brigade marched through the streets carrying an American flag. It wasn’t a peaceful march. The group vandalized cars and buildings and scattered trash around the streets. They chanted for the destruction of the United States. When the march reached Dallas City Hall, the group doused the flag with gasoline and burned it.
Texas prosecuted the leader of the group, Gregory Johnson, under a law protecting “venerated objects” and sentenced him to a year in prison.
It took five years for the case to reach the Supreme Court, where the Texas v. Johnson case eliminated state flag desecration laws. Congress immediately wrote a law specifically defending the flag, but a year later the court tossed that law in United States v. Eichman.
Venerated objects laws still exist in many states and are still prosecuted sporadically (a 2014 Pennsylvania case involved a man who filmed himself pretending to have sex with a statue of Jesus). There are even five states which still have laws giving protection to the Confederate flag (FL, GA, LA, MS, and SC), though it’s unlikely that any of these laws could be enforced.
The court’s reason for overturning these laws is exactly because these objects are venerated by some groups of Americans. That makes rough treatment of such objects a particularly effective form of speech—effective because some people find it so distasteful.
However, in Donald Trump’s case, it’s hard to believe he has any great affection for the flag.
The important part of Trump’s tweet isn’t that it’s about the flag. It’s that it’s about what he threatens to do.
Exempting destruction of the American flag would take a constitutional amendment, or altering the make-up of the Supreme Court by salting it with people with disdain for free speech. That’s certainly within the scope of the damage Trump could do.
The truth is, flag burning as a form of protest is quite rare. Those who engage in the practice are generally more provocateurs, people who—like Donald Trump—are more interested in gathering attention to themselves than advancing a message. However, the implications of the second half of Trump’s tweet, that protesters could find themselves no longer citizens, is an extraordinary threat. Especially in the light of earlier Trump statements.
While there is (currently) no way to strip a natural-born US citizen of their citizenship, there are circumstances by which naturalized citizens can be “denaturalized” and even deported. While most of these cases involve fraud during application for citizenship, naturalized citizens can forfeit their citizenship through association with groups designated as “subversive.”
“Your citizenship may be revoked if the U.S. government can prove that you joined a subversive organization within five years of becoming a naturalized citizen. Membership in such organizations is considered a violation of the oath of U.S. allegiance. Examples include the Nazi Party and Al Qaeda.”
While the examples on the list may seem obvious, this list could be extended, with the intention of making naturalized citizens afraid to participate in any protest or take an active role in any group. Trump’s “professional protesters” tweet shows that he won’t hesitate to draw associations when none exist.
The ranks of those who might be affected could swell, as Trump has supported Republican attacks on birthright citizenship.
Donald Trump said Tuesday that he doesn't think people born in the U.S. to undocumented immigrants are American citizens.
"I don't think they have American citizenship and if you speak to some very, very good lawyers -- and I know some will disagree -- but many of them agree with me and you're going to find they do not have American citizenship.”
And the threat might not stop there.
Trump’s latest interest in curbing First Amendment protections follows several other actions related to free speech, including his blacklisting of reporters who fell out of favor with his campaign and a suggestion that he would “open up” libel laws to make it easier to sue the news media.
Trump’s tweet is a double threat—an attack on the First Amendment, and a warning to immigrants.
Like everything that Trump says, it’s not wise to assume there’s any real deep thinking involved. But in this case, what’s right there on the surface is certainly frightening enough.