Former Law Clerk: Antonin Scalia Is Turning in Grave over Trump’s Threat to Jail Flag Burners

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Donald Trump also sparked controversy on Tuesday when he made two unconstitutional proposals in a single tweet, writing, “Nobody should be allowed to burn the American flag–if they do, there must be consequences–perhaps loss of citizenship or year in jail!” The Supreme Court has ruled twice that flag burning is protected under the First Amendment. The Supreme Court has also ruled it’s unconstitutional to strip people of citizenship for most crimes, including desertion. We speak to Harvard Law professor Lawrence Lessig, who once clerked for Antonin Scalia.

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AMY GOODMAN: Finally, Professor Lessig, you’re a Harvard Law professor, and I want to ask you about a totally different issue. Donald Trump sparked controversy Tuesday when he made two unconstitutional proposals in a single tweet. He tweeted, “Nobody should be allowed to burn the American flag–if they do, there must be consequences–perhaps loss of citizenship or year in jail!” Now, the Supreme Court has ruled twice that flag burning is protected under the First Amendment. The Supreme Court has also ruled it’s unconstitutional to strip people of citizenship for most crimes, including desertion. Supreme Court Justice Earl Warren wrote in 1958, “The deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” What are your thoughts, Professor Lessig?

LAWRENCE LESSIG: Well, I think that this—this potentially loophole president is becoming more and more like Vladimir Putin every day, because those are exactly the rules in Russia. You can be thrown in jail, you can lose your citizenship in Russia, certainly. But it’s absolutely unconstitutional to imagine either of those two penalties for exercising free speech. And my former boss, Justice Scalia, for whom I clerked, would be turning in his grave now to imagine a Republican president for—a candidate for president or a president-elect talking about doing something like throwing somebody in jail for flag burning. He joined the flag-burning opinion, which said flag burning was a protected First Amendment expressive activity.

AMY GOODMAN: I want to thank you for joining us, Professor Lawrence Lessig. Professor Lawrence Lessig teaches at Harvard Law School, and he’s the author of the book Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It. We’ll link to your op-ed in The Washington Post, “The Constitution lets the electoral college choose the winner. They should choose Clinton.” This is Democracy Now! When we come back, we’re going to talk hacking with Bruce Schneier. Stay with us.

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