On Tuesday morning, President-elect Donald Trump sent a Twitter message expressing his opinion about people who burn the American flag.
“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” Trump wrote.
Trump’s opinion differs from a 1989 Supreme Court decision that said to outlaw flag burning would impede on the First and Fourth Amendments.
One of the associate justices who agree with the court’s 1989 decision was the late Antonin Scalia, who Trump has often hailed as a great conservative thinker. Throughout his life, Scalia was forced to defend his decision.
Though he personally wished to jail people for burning the American flag, Scalia knew that he had to uphold the law. He often used the analogy that if he were king, he would gladly lock people up.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said in 2014. “But I am not king.”
In 2012, Scalia offered a similar opinion on CNN.
“Yes, if I were king, I…I would not allow people to go about burning the American flag,” Scalia said. “However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government.”
“I mean, that was the main kind of speech that tyrants would seek to suppress,” he added. “Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea — I hate the government, the government is unjust, whatever.”