WASHINGTON – President-elect Donald Trump started Tuesday by issuing a broadside on the First Amendment, suggesting on social media that burning the American flag should be a criminal offense.
The incoming 45th chief executive has mentioned a sweeping infrastructure plan, tax code changes, an immigration overhaul and changes to the Obama administration’s health care law as among his top agenda items. Until he fired off a tweet at 6:55 a.m., a constitutional amendment or law punishing those who burn Old Glory, a tactic often employed by those protesting political events, was not on his list.
It might be now, however – and it could pit Trump against a congressional Republican leader he needs to pass other agenda items.
“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.
It was not immediately clear what prompted Trump’s tweet. But protesters at events objecting to his coming presidency have burned American flags in scenes replayed on cable news and captured in print and online media accounts. Trump is a vociferous consumer of news, especially 24-hour cable television networks.
Trump’s transition office did not immediately respond to an inquiry about whether he plans to send Congress legislation that would amend the U.S. Constitution or install another law that would land flag-burners in jail or without citizenship.
Burning the flag long has been viewed by many Americans as distasteful and even disrespectful. But it has been considered an act of free speech, and never deemed a criminal offense. The U.S. Supreme Court has ruled burning the flag is protected by the Constitution.
Any potential effort by President-elect Trump to make burning the American flag illegal is likely to run into strident opposition from a leading member of his own party.
In 2006, an effort to amend the Constitution to allow for criminal penalties for flag burning came within one vote of getting through the Senate, but Mitch McConnell of Kentucky, now the majority leader, rebuffed his own party despite serving as the whip at the time.
The amendment fell, 66-34, one vote short of the two-thirds needed to advance.
It’s not that McConnell supported burning the flag. He made clear in a column and other public statements at the time that he abhorred the practice. But flag burning has fallen within McConnell’s wide definition of protected speech under the First Amendment.
“No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that,” McConnell wrote.
“Weakening our First Amendment could also set a dangerous precedent for the rest of the Bill of Rights. If we successfully carve out an exception to one basic freedom, perhaps those who seek to curtail our Second Amendment rights – the right to bear arms – will carve out another,” McConnell wrote. “Or the right to own private property, as expressed in the Fifth Amendment, could come under assault.”
McConnell also wrote about that vote in his memoir, “The Long Game.”
“Speech is speech and it’s certainly not the role of the government to decide what is offensive and what is not,” he wrote in the book. “What I was ultimately fighting for on this issue was not just our flag but what it represented: our freedom. You could not guarantee other freedoms by limiting one.”
While the idea of criminalizing flag-burning has been popular, the Supreme Court held it to be speech protected by the First Amendment in a pair of 5-4 rulings in 1989 and 1990.
First, in Texas v. Johnson, the court found that a Texas law used to convict a protestor for desecrating a flag at the 1984 Republican National Convention in Dallas violated the free speech protections in the First Amendment. Congress passed a federal law in response, which the court struck down in United States v. Eichman in 1990.
The majority in both cases included Justice Antonin Scalia, the reliably conservative justice who died Feb. 13. During the campaign, Trump said he would appoint judges in the mold of Scalia.
“If I were king I would not allow people to go about burning the American flag,” Scalia told CNN in a 2012 interview. “However we have a First Amendment, which says the right of speech will not be abridged, and it is addressed in particular to speech critical of the government. I mean that was the main kind of speech tyrants would seek to suppress.”
“Burning the flag is a form of expression. Speech doesn’t just mean written words, or oral words, it could be semaphore,” Scalia said. “Burning a flag is a symbol that expresses an idea: I hate the government, the government is unjust, whatever.”
Local journalism is essential.
Give directly to The Spokesman-Review's Northwest Passages community forums series -- which helps to offset the costs of several reporter and editor positions at the newspaper -- by using the easy options below. Gifts processed in this system are not tax deductible, but are predominately used to help meet the local financial requirements needed to receive national matching-grant funds.
Subscribe to the Coronavirus newsletter
Get the day’s latest Coronavirus news delivered to your inbox by subscribing to our newsletter.