‘If I were king...’: Justice Antonin Scalia’s 2012 remarks on flag burning resurface amid Donald Trump’s crackdown; calls it a ‘symbol that expresses an idea’

An old interview clip of late US Supreme Court Justice Antonin Scalia has resurfaced online, after President Donald Trump’s recent executive order directing the justice department to prosecute cases of flag desecration. Drawing fresh attention to America’s long-running debate over flag burning, Trump on Monday argued the act can incite riots and insisted offenders should face a one-year jail term. “You burn a flag, you get one year in jail,” Trump declared, while acknowledging that the Supreme Court has previously ruled otherwise.In a July 2012 interview with Piers Morgan, which aired on CNN, Scalia had defended desecrating the American flag, saying the Constitution protects it as free speech.“If I were king, I would not allow people to go about burning the American flag,” Scalia said. “However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government.”He explained that the act, however offensive, was a form of symbolic expression, “Burning the flag is a symbol that expresses an idea. I hate the government. The government is unjust, whatever.”When pressed by Morgan on whether interpretation ultimately came down to his judgment, Scalia responded that legal safeguards went beyond any one justice: “Don’t forget this person has to be convicted by a jury of 12 people… ultimately, the right of jury trial is the protection.”The 1989 case of Texas v. Johnson saw the court, in a 5–4 decision, strike down state laws banning flag burning, calling it protected political expression. Scalia, despite his conservative reputation, joined the majority. As reported by ABC News, Justice William Brennan wrote for the court, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”Civil liberties groups have since warned that Trump’s order could run afoul of that precedent. Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, was quoted as saying by news agency AP that while the government can prosecute people for setting fires unlawfully, it “can’t prosecute protected expressive activity, even if many Americans, including the president, find it ‘uniquely offensive and provocative.’”Legal scholars note that Scalia himself, years later, repeated that view bluntly and said, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”