After the election, acts of protest have sprung up around the country—and some of those acts include burning the American flag. President-elect Donald Trump isn’t having it.
“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted early this morning.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
The issue of flag burning has been brought up to the Supreme Court twice—once in 1989 and again in 1990. The act remains protected as free speech under the First Amendment of the Constitution.
Many on Twitter pointed out that Trump doesn’t seem to know about the U.S.’s history with flag burning.
“It is poignant but fundamental that the flag protects those who hold it in contempt.”
– Justice Kennedy, 1989 pic.twitter.com/ldPDJNQgjN
— Brad Heath (@bradheath) November 29, 2016
Trump is constitutionally clueless. Nobody can be stripped of citizen status, and even Scalia agreed 1st Am protects flagburning https://t.co/l3kg3VReb6
— Laurence Tribe (@tribelaw) November 29, 2016
jesus, will you just google the first amendment already? https://t.co/BvQsr4UFCV
— Tracy Clayton (@brokeymcpoverty) November 29, 2016
Trump’s spokesman, Jason Miller, weighed in on the issue. “Flag burning should be illegal,” Miller told Chris Cuomo of CNN. “The President-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”
Miller seems to be ignoring the fact that the Supreme Court has said twice that there is no difference between First Amendment protected speech and burning the American flag.
Antonin Scalia, the late Supreme Court Justice whom conservatives hold up as an exemplar of a SCOTUS judge, probably would have disagreed with Trump on flag burning as well. In 2012, Scalia told CNN how he feels about the act.
“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,” he said.
Scalia thought of flag burning as a form of expression that shows how people feel about the government, which many others agree with.
It’s unclear whether Trump will push for a flag protection act like the two that have been ruled unconstitutional in the past. The Flag Protection Act of 2005 was co-sponsored by then-Sen. Hillary Clinton, so perhaps there’s something the two agree on.