President-elect Donald J. Trump proposed a dangerous, hypocritical, and unconstitutional penalty for anyone who burned an American flag – prison or loss of citizenship.
On Tuesday morning, the PEOTUS 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!”
The reason for Trump to broach the topic was not stated, but it could stem from an incident at Hampshire College in Massachusetts weeks ago where students burned an American flag and demanded that the school take down the flag because they saw it as a “symbol of mysogny and racism.”
This subject has been debated in the highest court in the land, not once, but twice, and the U.S. Supreme Court ruled that burning the American flag is protected under the First Amendment as a form of free speech. In 1989, burning the American flag was declared “symbolic speech” and ruled to be protected speech under the First Amendment in the Supreme Court case Texas v. Johnson. The landmark case under Chief Justice William Rehnquist argued that any statute or law that criminalizes the desecration of a venerated object like the American Flag violates a person’s First Amendment privileges as outlined by the Bill of Rights.
The following year, in Supreme Court case United states v. Eichman, the top court again affirmed the right to burn the flag under the Flag Protection Act of 1989.
“The Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Justice William Brennan wrote in the majority opinion on United States v. Eichman.
Trump has tweeted about the importance of free speech, including this tweet which quoted George Washington, “‘If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.’ – George Washington.”
Trump has praised deceased Supreme Court Justice Antonin Scalia and called him a “brilliant Supreme Court Justice, one of the best of all time.” However, this is what Scalia said about burning the American flag:
“If I were king, I would not allow people to go around burning the American flag — 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. I mean that was the main kind of speech that tyrants would seek to suppress. Burning the flag is a form of expression — speech doesn’t just mean written words or oral words — burning a flag is a symbol that expresses an idea. ‘I hate the government, the government is unjust,’ or whatever.”
Senate Majority Leader Mitch McConnell has defended the First Amendment:
“No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that,” McConnell wrote in 2006. “Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.”
Also, the proper way to dispose of a tattered flag that is no longer a fitting emblem for display is to burn it. Would those Americans face a year in prison for burning the flag?
Even if flag burning wasn’t protected, it would still be unconstitutional to revoke an American’s citizenship. Natural-born U.S. citizens may not have their citizenship revoked against their will, only if they renounce their citizenship on their own.
Trump may have gotten his idea for punishing those who burn the flag from none other than Hillary Clinton. Back in 2005, then-Senator Clinton proposed the Flag Protection Act of 2005. “The law would have prohibited burning or otherwise destroying and damaging the US flag with the primary purpose of intimidation or inciting immediate violence or for the act of terrorism. It called for a punishment of no more than one year in jail and a fine of $100,000.”
In 51 days, Trump will take the Oath of Office and become our great nation’s 45th Commander-in-Chief, let’s hope he takes some refresher classes on the Constitution between now and then.