ABC News(NEW YORK) — President-elect Donald Trump suggested Tuesday in a tweet that burning the American flag should result in “loss of citizenship or year in jail.”
Flag burning is legal in the U.S., protected by the First Amendment.
The U.S. Supreme Court in 1989 ruled that burning the flag as a form of “symbolic speech” is a constitutional right. The narrow 5-4 decision came in a case involving Gregory Joey Johnson who, outside the 1984 Republican National Convention, burned the flag to protest the policies of then-President Ronald Reagan.
But Trump’s tweet and subsequent comments by Jason Miller, spokesman for the president-elect’s transition team, suggest Trump may want to try to revive this issue and outlaw flag-burning.
“Flag-burning should be illegal,” Miller said on CNN when asked about Trump’s tweet.
“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 said.
It wasn’t clear what prompted Trump’s tweet on the issue. But it came after a group of military veterans and others protested this weekend at Hampshire College in western Massachusetts against a decision by the school to temporarily stop flying the U.S. flag after students allegedly burned a flag in protest of Trump’s election.
Flag-burning was at times used as a form of protest against Trump during his presidential campaign, including by Johnson, who was among 17 demonstrators arrested in Cleveland this July during the Republican National Convention.
Johnson spoke to ABC News last month on the broader topics of protest and Trump, then a presidential candidate, after Supreme Court Justice Ruth Bader Ginsburg criticized San Francisco 49ers quarterback Colin Kaepernick for kneeling during pregame performances of the national anthem in what the football player said is a protest against the treatment of blacks in the U.S. Ginsburg later expressed regret for criticizing Kaepernick’s protest.
“Today in the U.S., it’s the same flag and the nationalistic chauvinism is even worse,” Johnson told ABC News in the interview, referring to his role in the Supreme Court’s 1989 case.
The American Civil Liberties Union (ACLU), the non-profit organization whose stated mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States,” has a statement on its website defending the flag desecration, defending it as a constitutional right.
“Our democracy is strong because we tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel or how much we disagree. The U.S. Supreme Court has affirmed and reaffirmed that the right to desecrate the flag is included in the Constitution’s protection of speech,” the statement says.
The ACLU suggests that flag burning is entwined with political speech: “Flag burning and desecration is offensive precisely because it is political. Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.”
The Flag Protection Act of 2005, a proposed law introduced by then Sens. Hillary Clinton, D-N.Y., and Robert Bennett, R-Utah, would have outlawed the burning of the flag, and called for a punishment of one year in jail and a fine of $100,000.
The law was not passed, or considered by the U.S. Congress, and was therefore never challenged by the courts.
A 2006 amendment that would have rolled back the 1989 ruling of the Supreme Court was rejected with a 66-34 vote. Fourteen Democrats, including Senate Minority Leader Harry Reid of Nevada, voted in favor of the measure.
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