Burning an American flag should be a crime, President-elect Donald Trump wrote Tuesday morning on Twitter, perhaps punishable by a forfeiture of U.S. citizenship or a year in jail.
“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” Trump wrote in a post to his social media account.
Laws prohibiting the burning or desecration of the flag have been struck down by the Supreme Court, most recently in 1990, because they were found to have violated the First Amendment of the Constitution, which protects freedom of speech. A 1958 Supreme Court decision rejected the practice of stripping U.S. citizenship as a form of criminal punishment, on the grounds that it violates Eighth Amendment protections against “cruel and unusual punishment.”
In a 5-4 decision in 1989, the Supreme Court upheld the right of protesters to burn the flag, with the late Justice Antonin Scalia siding with the protesters. He later said he based his ruling on a “textual” reading of the Constitution.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 in Philadelphia. “But I am not king.”
A 2005 bill that would have reinstituted a ban on flag burning was co-sponsored by Hillary Clinton, then a senator from New York. That legislation was unsuccessful.
A constitutional amendment that would allow the government to ban flag desecration has been proposed multiple times but has never passed. It was last voted down in 2006 in the Senate, where current Majority Leader Mitch McConnell and former Democratic presidential candidate Lincoln Chafee, then a Republican, were among three GOP lawmakers to vote against it. Then-Sen. Clinton also voted against it.
McConnell disagreed sharply with Trump’s tweet when asked about it during a press availability on Tuesday.
“The Supreme Court has held that that activity is a protected First Amendment right, a form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter,” McConnell said.
Some protesters upset with Trump’s Election Day victory have set fire to American flags at demonstrations throughout the country. At Hampshire College, a small school in western Massachusetts, administrators removed the American flag from campus after protesters there burned one, according to WWLP-TV. That decision prompted a protest of more than 1,000 people, many of them veterans, upset with the school’s decision.
Jason Miller, Trump’s senior communications adviser, struggled to defend the president-elect’s post in an interview on CNN’s “New Day” just minutes after the tweet appeared online. He refused to concede that flag burning is constitutionally protected speech, insisting that it should be illegal even as he tried in vain to pivot to the announcement of Rep. Tom Price (R-Ga.) as Trump’s pick to be secretary of health and human services.
“Chris, flag burning is completely ridiculous. And I think you know that and I think the vast majority of Americans would agree,” Miller told CNN anchor Chris Cuomo.
“But legal,” Cuomo interjected.
“But Chris, it’s completely ridiculous. And I don’t think there’s a big universe of people out there who support flag burning. It’s terrible and it’s despicable,” Miller replied.
The two continued in circles for several more rounds of back-and-forth as Cuomo tried to pin down Trump’s spokesman on the issue of flag-burning before Miller finally succeeded in turning the interview to Price’s selection, telling his interviewer that “flag burning should be illegal. End of story. Let’s get in and talk about how we’re going to repeal and replace Obamacare and these fantastic picks that the president-elect announced this morning.”
House Majority Leader Kevin McCarthy (R-Calif.) readily acknowledged during an interview on MSNBC’s “Morning Joe” that flag burning is constitutionally protected free speech, telling panelist Willie Geist that “we’ll protect our First Amendment” even though he does not agree with the practice.
Rep. Sean Duffy (R-Wis.), asked about Trump’s tweet in a separate “New Day” interview, said, “I love my flag, and I love what it stands for, and I hate those who want to go out and burn it.” Still, Duffy added: “The court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag even though so many of us who love our country and love our flag object to it.”
Rep. Justin Amash (R-Mich.), a libertarian-leaning member of the conservative House Freedom Caucus, also took issue with Trump’s flag-desecration stance, writing on his own Twitter account that “Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment.”
Trump received a modicum of support from Sen. John McCain (R-Ariz.), the Armed Services Committee chairman with whom he clashed throughout his presidential run. As he made his way through a Capitol Hill office building, McCain told CNN that “I do not approve of burning the flag. I think there should be some punishment, but right now, the Supreme Court decision is that people are free to express themselves that way.”
McCain declined to offer any further comment on Trump’s social media post, telling a CNN reporter that the president-elect’s bombast is a distraction from the work he faces on Capitol Hill.