NEW YORK (UPI) — President-elect Donald Trump on Tuesday suggested the loss of citizens or a year in jail for someone who burns the American flag.
Trump made the proposal in an early morning tweet Tuesday.
“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 tweet posted at 6:55 a.m.
Burning the American flag was ruled to be protected speech under the First Amendment.
In 1989, the U.S. Supreme Court invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. In a Texas case, Justice William Brennan wrote for a five-justice majority that defendant Gregory Lee Johnson’s act of flag burning was protected speech under the First Amendment to the United States Constitution. Johnson, then a member of the Revolutionary Communist Youth Brigade, had participated in a political demonstration during the 1984 Republican National Convention in Dallas. Justice Anthony Kennedy, the only member of the current court., concurred with the majority.
Congress, in reaction to the Supreme Court decision, amended a law, known as the Flag Protection Act, that banned flag burning to the District of Columbia. But the Supreme Court in 1990 struck down the law, again ruling that preserving the flag as a symbol does not outweigh the individual’s First Amendment right to disparage that symbol through expressive conduct.
Justice Anton Scalia, who was in the majority in both cases, said in 2015, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. “But I am not king.”
Several times, a constitutional amendment that would allow the government to ban flag desecration has been proposed but never passed. The last time was in 2006when it fell one vote short 66-34 in the Senate. The bill had passed the House. Constitutional amendments also require three-fourths of the states legislatures to ratify it.
In 1958, the Supreme Court rejected stripping U.S. citizenship on the grounds that it violates Eighth Amendment protections against “cruel and unusual punishment.”
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 said repeatedly.
Last week, Hampshire College in Massachusetts announced it would stop flying all flags on campus after an American flag was burned following Trump’s win. Protesters later demanded the return of the U.S. flag to the campus.
“We hope this will enable us to instead focus our efforts on addressing racist, misogynistic, Islamophobic, anti-immigrant, anti-Semitic and anti-LGBTQ rhetoric a