The Tweeter in Chief - Geoffrey A. Schoos, Guest MINDSETTER™

Tuesday, December 06, 2016

Geoffrey A. Schoos, Guest MINDSETTER™

From the guy who stated that there are XII Articles in the Constitution, this:

"Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!"

If you're thinking, Whiskey Tango Foxtrot, join the club.  This came after a Fox News story of some student at Hampshire College who set fire to an American flag in protest of Trump's election.  I think we can all weigh in on the efficacy of such protest, but what is beyond dispute is that the student has a First Amendment right to protest in this manner.

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In 1989 Texas v. Johnson, 491 U.S. 397, settled the question of flag burning.  Gregory Lee Johnson was protesting the renomination of Ronald Reagan at the 1984 Republican convention held in Dallas, Texas. In highlighting his protest, Johnson set fire to an American flag. Under the authority of state law, Johnson was arrested and convicted of desecration of a "venerated object." Johnson asserted that his act of flag burning was symbolic speech protected by the First Amendment and by a 5-4 vote, the U.S. Supreme Court agreed.

In 1967, Afroyim v. Rusk, 387 U.S. 253, settled the question of revoking someone's citizenship. Afroyim, of Polish birth and a naturalized U.S. citizen, went to Israel in 1950 and cast a vote in an Israeli legislative election. When he later sought to renew his passport, the State Department refused to do so stating that Afroyim lost is U.S. citizenship status pursuant to section 401(e) of the Nationality Act of 1940. By a 5-4 vote, the Supreme Court held that there was no constitutional basis for the Congress to divest a person of his U.S. citizenship absent a voluntary denunciation thereof.

I get that these are random musings of a person addicted to his Twitter account, but because of the source of these musings, they're quite serious in what they reveal. And in this case, what they reveal is a woeful lack of knowledge or understanding by the Tweeter-in-Chief (elect) of our Constitution and the rule of law.

Such thoughts coming from an Archie Bunker-like character can be humorous, but from the Tweeter-in-Chief they are unsettling. This simple tweet, unscrubbed and unvarnished by Kellyanne and others on his staff, reveals a boundless disdain for the speech provisions contained in our "precious" First Amendment, and an utter lack of understanding the concept of citizenship in America. When the President-elect sounds like some drunken gasbag at a local tavern, then we all need to be concerned.

Mr. Trump has an interesting view of the Constitution. From his own statements, pretty much every Amendment thereto is negotiable. He evidently thinks, "Of course we have the freedom of speech but that freedom has limits," and exceeding those limits "perhaps" might lead to loss of citizenship or time in jail, or both I assume.

On the other hand, Mr. Trump is an absolutist when it comes to our "precious" Second Amendment, perhaps because of the large coffers of money that the NRA commands, not to mention its voluminous membership list. But that's another discussion for another day. I just bring it up to show Trump's inconsistent 'thinking" about the Constitution.

The President-elect's understanding, or misunderstanding, of citizenship is well documented and well known. It's his misunderstanding of the right to speech, direct or symbolic, that is new. I am not a flag burner, in large part because I don't find symbolic speech useful. I either state orally or in writing my views and positions, while reserving my symbolic speech for other motorists on our highways.

But I wonder whether Trump understands that there's a profound difference, and thus differing  levels of protection, for political speech, symbolic or otherwise, and flipping someone off on the way home. While most speech, except obscenity, defamation, fighting words and the like, is protected, political speech receives the highest constitutional protection. To suggest that an act of symbolic political speech should result in some "consequence" is loathsome to our constitutional principles.

I'm uncertain whether Trump has no idea of Constitutional principles or whether he knows but does not care. As one pundit recently said, it’s difficult to know whether Trump is lying and telling his base what it wants to hear, or whether he's telling the truth as he believes it.  Either way we're in trouble.

In a few weeks, at noon on January 20, 2017, Donald John Trump will say the following words and thereafter become the 45th President of the United States:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." 

At a bare minimum we can only hope that President Trump comes to have a rudimentary understanding of the Constitution that he will have sworn to "preserve, protect and defend." Here's a helpful hint to get him started: the language comes from Article II, Section I, Clause 8 - not Article XII.

Geoffrey A. Schoos, Esq is the President of the Rhode Island Center for Law and Public Policy

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