President-elect Donald Trump proposed on Tuesday a penalty — including possible jail time or loss of citizenship — for burning the American flag, in spite of two US Supreme Court rulings that protect the act under the First Amendment as a form of free speech.
“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 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!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
The Supreme Court twice affirmed the right to desecrate the American flag as a form of free speech — a historically contentious issue — in cases before the high court in 1989 and 1990.
In the 1989 case “Texas v. Johnson,” the Supreme Court ruled 5-4 that flag burning was a form of “symbolic speech” that was protected by the First Amendment. The ruling was granted after an appeal from Gregory Johnson, who had been convicted by a Texas court of violating a state law that prohibited the “desecration of a venerated object” such as the US flag.
The following year, in “United states v. Eichman,” the Supreme Court again affirmed the right to burn the flag when it ruled 7-3 that the Flag Protection Act of 1989 — passed by Congress in response to the Johnson decision — was unconstitutional.
When asked about the Supreme Court rulings on CNN’s “New Day,” Trump transition spokesman Jason Miller did not respond to questions about the constitutional protections of flag burning.
“Flag burning should be illegal,” Miller repeatedly told CNN’s Chris Cuomo.