skip to content

Burn the flag, go to jail

30 November 2016 – 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.

The Supreme Court has 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” protected by the First Amendment. The ruling came
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 top court again affirmed the right
to burn the flag when it ruled 5-4 that the Flag Protection Act of 1989 — passed by
Congress in response to the Johnson decision — was unconstitutional.

It’s not immediately clear what prompted Trump’s tweet Tuesday morning, though the
national discussion of respect for the flag has been restarted in part following a flag
burning November 10 on the campus of Hampshire College in Amherst,
Massachusetts, as part of a post-election protest. The university then decided to
stop flying the American flag at the campus, which also infuriated some members of
the community.

“Flag burning should be illegal,” Trump Transition Spokesman Jason Miller told CNN’s
Chris Cuomo. “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.”