How the Grinch stole Twitter, and made a first amendment case.

On November 29th, President-elect Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”[1] I picture him sitting atop Trump tower, high above Whoville with a sly Grinchian smirk creasing his lips, as his thumbs masterfully crafted his plans to steal the media’s dignity…again. On cue, as Trump’s verbal bomb rolled down the snowy slopes towards Whoville, and the roast beast festival was interrupted with panic, the breathless headlines appeared.  The likes of the Chicago Tribune, New York Post, USA Today, and others, write explicitly that the First Amendment protects the act of flag burning (and, it does[2]). But, the implicit co-narrative being advanced is that if burning flags is allowed as free speech, that believing burning flags should be illegal is therefore not a proper exercise of the same. For example: beloved actor and activist George Takei tweeted in response that he “…would never burn [a flag], but [he would] die to protect the right to do so.”  In other words, it appears Takei would sacrifice his life to protect one type of free speech (flag burning), and not another act of free speech (stating that flag burning should be illegal).  Those two positions seem as antithetical as if someone else said that they supported the act of internment but also of due process.

The thing about the free speech clause of the First Amendment is that it protects both the act of flag burning, and those who state that flag burners should be punished.  Of course, it’s not as much fun to point out that you can’t really support someone burning a flag on free speech grounds if you don’t also support those who don’t want that (or vice versa).  As David L. Hudson, Jr., a first amendment scholar and former law professor of mine was quoted as saying, “The First Amendment protects a lot of offensive, disagreeable and even repugnant speech…[Trump] tweets about everything, so it’s not really a surprise. And he has a right to tweet it.” [3]


Ultimately Trump wins, again.  The media seems to believe he is speaking only to the basest emotions of his “deplorable” supporters.  A counter argument could be made that he is baiting the media to show how biased and one sided they continue to be[4]. This bias blinded the same media to his support, and effected the outcome of the election in a way that is opposite of what they had originally intended. But, being biased is their right, too.

—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1]Trump Tweet

[2] See: Texas v. Johnson

[3] See: Chicago Tribune, November 29, 2016.

[4]Yes, Clinton also stated that flag burners should be punished.