Did you know the first newspaper in the future United States lasted one day?
The official reason the governor of the Massachusetts colony shut down Publick Occurrences was because publisher Benjamin Harris — a stern advocate of freedom of speech — failed to get a license. The unofficial reason was the British government did not like what Harris’ publication had to say, characterizing its content as “uncertain reports.” More than a decade would go by before the monarchy would allow another newspaper to be published, one with the king’s approval.
That was in the fall of 1690 — roughly 85 years before the start of the American Revolution and nearly a century before the ratification of the Constitution. Before there was a 1st Amendment or even a United States, there was an authoritarian government in place restricting speech, spreading fear and jailing those who dissented. Colonial life under these conditions is why “freedom of speech, or of the press” was written into the Bill of Rights before the right “to keep and bear arms.” The forefathers understood that to ward off tyranny, the people must have access to the pen as well as the sword.
This history was particularly important to conservative Supreme Court Justice Antonin Scalia, who sat on the bench from 1986 to 2016. A constitutional originalist, he believed the document should be interpreted as it was written within the context of when it was written. He wasn’t on the bench long before demonstrating how strong those beliefs were.
In 1984, a man by the name of Gregory Lee Johnson burned a flag at a demonstration in downtown Dallas while the Republican National Convention was in town. He was protesting some policies of the Reagan administration, including U.S. involvement in foreign conflicts, and he was arrested for breaking a state law against desecrating the flag. Johnson appealed, the case made it up to the Supreme Court, and in a 5-4 ruling in 1989 in favor of Johnson, stood Scalia on the side of flag burning.
Or rather, the 1st Amendment.
Not because he agreed with what Johnson did but because the case embodied the very purpose for which the forefathers wrote the 1st Amendment: to speak out against government. That principled stance was what Scalia taught as a law professor at the University of Chicago years before joining the country’s highest bench. It was during his time on campus that he became one of the founding mentors for a new conservative lawyer organization of constitutional originalists called the Federalist Society. Forty years later, six of the current Supreme Court justices have ties to the club and thus presumably share Scalia’s general approach to the Constitution.
“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 2015. “But I am not king.”
The following year Scalia passed away.
His legacy is evident not only in the landmark decisions he was a part of but also in the judges making decisions in courtrooms today. According to Ballotpedia, about half of President Trump’s judicial nominees came from the Federalist Society.
It will be quite interesting to see how these judges — including the Federalist-linked justices — will rule should flag burning cases come their way. Trump is setting the stage for lots of challenges, having ordered prosecutors to bring charges against flag burners. Earlier this week, during a roundtable discussion about antifascists, he said: “We took the freedom of speech away because that’s been through the courts and the courts said you have freedom of speech, but what has happened is when they burn a flag it agitates and irritates crowds. I’ve never seen anything like it on both sides. And you end up with riots.”
I’m not a member of the Federalist Society, but from the outside looking in, both Trump’s rhetoric and executive order appear to be the antithesis of what Scalia stood for. The conversation regarding flag burning has been in and out of the nation’s courtrooms since 1907. However, it was Scalia in 1989 — putting his personal feelings aside in defense of the rule of law — who made it settled law. And his principled stance inspired generations of lawyers. Now that he’s gone and a president is trying to punish protected speech, I wonder who among Scalia’s many acolytes will be willing to defend the 1st Amendment the way their mentor did.
After all, it’s easy to get a club membership and talk about defending the Constitution.
It’s much harder to do it.
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Ideas expressed in the piece
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The author traces the historical roots of free speech protections to colonial America, where British authorities suppressed Benjamin Harris’ Publick Occurrences in 1690 for publishing content the monarchy disliked, demonstrating that authoritarian control of speech predated American independence and explains why the founders prioritized freedom of speech in the First Amendment before the right to bear arms.
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Justice Antonin Scalia exemplified principled constitutional originalism when he sided with flag burning in the 1989 Texas v. Johnson case, putting aside his personal distaste for the act to uphold the First Amendment’s core purpose of protecting dissent against government. His famous statement that he would jail “every sandal-wearing, scruffy-bearded weirdo who burns the American flag” if he were king, but recognized he was not, demonstrates the distinction between personal preference and constitutional duty.
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The Federalist Society, which Scalia helped found at the University of Chicago and which emphasizes constitutional originalism, has produced approximately half of Trump’s judicial nominees and six current Supreme Court justices, creating a judicial landscape theoretically aligned with Scalia’s interpretive philosophy.
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Trump’s recent executive order directing prosecutors to bring charges against flag burners and his claim that flag burning should lose First Amendment protection because it “agitates and irritates crowds” and leads to “riots” represents a fundamental contradiction of settled law and the constitutional principles that Scalia championed, essentially arguing that unpopular speech can be criminalized based on others’ reactions to it.
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The current moment presents a test of whether Federalist Society-affiliated judges will honor their professed commitment to constitutional originalism by following Scalia’s example and protecting flag burning as protected speech, or whether they will prioritize political loyalty over legal principle, revealing whether their dedication to constitutional interpretation is genuine or merely performative.
Different views on the topic
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Some argue that symbolic protests involving the flag deserve different consideration than other forms of speech because of respect for military service and those who died defending the nation. While discussing protests during the national anthem, one prominent figure explained that standing during such moments honors family members who served, including an uncle who was a Marine and a father who is a veteran, suggesting that patriotic symbols carry special significance that transcends abstract constitutional debates[1].
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Federal authorities contend that certain protest activities, including flag burning and other acts near federal facilities, create public safety emergencies requiring law enforcement intervention. The Trump administration has argued that protesters who set fires, including burning flags, threaten federal property and officers, justifying the deployment of National Guard troops and federal agents to maintain order[2].
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Those supporting restrictions on flag burning maintain that such acts go beyond protected speech by inciting violence and creating dangerous situations. Trump has characterized flag burning as speech that “agitates and irritates crowds” on “both sides,” leading to riots, suggesting that the government has an obligation to prevent activities that predictably result in public disorder and threaten community safety, even if courts have previously classified such acts as protected expression.
