Burning the American flag is, to some, one of the most despicable things you can do to protest your country. It’s also, thanks to the Constitution, completely legal and entirely within your rights as a citizen of the United States.
Unless, of course, Donald Trump has anything to say about it. Tuesday morning, the president-elect tweeted that "Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!"
While other politicians have endorsed legislation criminalizing flag burning in the past, no one in such a prominent position of power in America has ever before suggested such a cruel and unusual punishment for political dissent.
In fact, currently it’s legally impossible to strip natural-born U.S. citizens of their citizenship against their will (although earlier this year Ted Cruz attempted to introduce legislation to the Senate that would expatriate US-born citizens if they joined foreign terrorist organizations — that went about as well as you’d expect). Even the late Antonin Scalia once affirmed flag burning as a valid form of protest in his role as a Supreme Court Justice.
But what if we burn a flag “not in protest, but in celebration of the very freedoms that allow us to burn a flag?” The freedoms that everyone who has ever previously worked in the White House has pledged to preserve and protect?
If that sounds familiar, it’s because it’s a line from a television show — specifically, a 2004 episode of “The West Wing,” where magicians Penn and Teller demonstrated their First Amendment rights by burning the flag at the White House.
The First Amendment “is the one that guarantees not just everybody in this room but every single person in the United States, every citizen, every visitor, every magician, freedom of speech,” Penn Jilette says in the episode — which, remember, was aired on primetime network television during an election year in the middle of the Bush administration. No big.
“It's the one that says if we want to add a little bit of spontaneous combustion to our simple vanish, we can do that. We can take some tinder and a very eccentric magic wand [a lighter] and we can do this — and it's okay,” he continues], “because even though the flag is gone, the Bill of Rights remains.”
It should be pretty clear to anyone who’s seen a magic trick in their life that the flag was never actually burned. Regardless, the message is still the same: flag burning might shock and appall us, and it might cause a publicity nightmare (freedom of speech, after all, doesn’t mean people have to agree with you), but like it or not it’s protected under the Bill of Rights.
Of course, it probably isn’t wise for anti-Trump protesters to retaliate against his authoritarian message with their own flag burnings — doing so would certainly paint the anti-Trump movement in an extremely negative light and further deepen the ideological divide between his supporters and his detractors (and might be exactly what Trump and the white supremacists who advise him actually want).
But if they wanted to, that’s their right. That right is what made America great in 2004 when this "West Wing" episode aired — and hopefully that's what will continue to make it great now, even as our rights are currently being threatened.