President-elect Donald Trump sent out tweets Tuesday morning that criticized burning the U.S. flag and suggested those who do so should be jailed or lose their citizenship. Trump has a history of creating controversy with his Twitter account, but his most recent attack on free speech warrants an exploration of why First Amendment rights matter and how they could change during his presidency.
The First Amendment protects the freedoms of religion, speech, press, assembly and protest.
The president-elect's most recent attack was on a form of freedom of expression that is well defined by previous Supreme Court cases. One such case is Texas v. Johnson in 1989. Gregory Johnson protested outside the Republican National Convention and burned a flag during that protest. He was charged and sentenced for desecrating the flag but appealed the case to the Supreme Court. The court ruled in his favor because his actions were a form of political protest.
Ken Paulson, president of the First Amendment Center at Vanderbilt University, says this case should be sufficient in preventing any regress on this issue.
"If someone can be jailed because they burned a flag, protesting government policy, that's a violation of everything we hold dear," Paulson said. "It's clear: it was resolved in 1989. There is no possibility Supreme Court is going to overturn it."
Flag burning is also protected by a second Supreme Court Case, United States v. Eichman. Congress passed a law that made flag desecration illegal at the federal level but the Supreme Court also deemed the law unconstitutional in 1990.
When he is president, Trump has the right to nominate a new justice following the passing of Justice Antonin Scalia. Susan Seager, a First Amendment lawyer, said it is unlikely this new justice will reverse the decisions made in 1989 and 1990.
"Him continuing to criticize the press in his tweets which could have a chilling effect on reporters who are trying to get access to the President, get press credentials," Seager said. "I think President-elect Trump could be very aggressive in going after whistleblowers."
He did continually throughout his campaign, using Twitter to speak out against those criticizing him or his running mate, Mike Pence.
Trump has not only targeted the press in his anti-free-speech tweets. Acts of protest, such as that of the cast of Hamilton and the post-election day protesters, have come under fire. Seager thinks the public should keep exercising its freedom of speech to protect it.
"I think peaceful protests are very important to continue," Seager said. "There's been some criticism that these protests don't have an agenda that they don't have any sort of demands, but I do think that even President-elect Trump and the people in power will listen to very broad demonstrations."
There are other freedoms of speech and expression that many Americans don't realize they use every day. Paulson said Americans take their freedom of consciousness for granted.
"Every day, all day long, when you speak to others, when you read freely, when you post to the internet, when you say a silent prayer to yourself, when you gather together with folks in the cafeteria together and talk about what needs to change or work," said Paulson, "in some way or another you are exercising the five freedoms of the First Amendment."
"That's what Americans miss. It is so crucial to who we are as a people and has to be protected," Paulson continued.
At this point, Trump has not softened his stance on the freedom of speech in the same way he shifted his tone on the Affordable Care Act, among other issues, following the election. January will tell if he makes such a change.
Correction: An earlier version of this story misstated the name of the late Supreme Court Justice Antonin Scalia.