President-elect Donald Trump condemned the constitutionally protected act of flag burning, threatening to lock up anyone who takes a flame to the Stars and Stripes.
“Nobody should be allowed to burn the American flag — if they do, there must be consequences,” Trump tweeted early Tuesday. “Perhaps loss of citizenship or year in jail!”
It’s unclear what motivated Trump’s off-the-cuff tweet, which came as he struggles to fill his administration’s cabinet. In the three weeks since the election, the Republican has filled just four of the 15 positions.
Flag burning — often used as a form of protest — is protected under the First Amendment of the U.S. Constitution, which guarantees citizens’ rights to free speech. The U.S. Supreme Court has twice ruled that the U.S. government cannot ban flag burning.
After the first Supreme Court case in 1989, Texas v. Johnson, Congress enacted the Flag Protection Act, which approved fees and prison time as punishment for burning, defiling and mutilating the flag. That act was struck down a year later in the Supreme Court case United States v. Eichman, which again maintained that citizens have the right to burn the flag.
Since the dual decisions upholding the protections of flag burning, some members of Congress have repeatedly proposed constitutional amendments that would ban the act. None of them have succeeded.
In 2006, Senator Mitch McConnell voiced his opposition to one of those proposed amendments, writing that even though he found the act of flag burning to be “abominable,” banning it would be a blow to American’s freedoms.
“No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that,” he wrote. “As disgusting as the ideas expressed by those who would burn the flag are, they remain protected by the First Amendment.”
The late Supreme Court Justice Antonin Scalia — whose February death opened a position on the bench, which Trump must fill — also agreed that protecting speech, no matter how offensive, is crucial to democracy.
“If I were king, I would not allow people to go about burning the American flag,” he told CNN in 2012. “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 added that banning acts like flag burning might be the kind of thing a dictator would do.
“I mean, that was the main kind of speech that tyrants would seek to suppress.”