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.
What the Supreme Court has said about flag burning
Steve Vladeck, CNN legal analyst and professor at the University of Texas Law School, said Trump’s suggestion that citizens possibly be expatriated as a penalty is also a non-starter.
“In addition to ignoring the Supreme Court’s clear teaching that flag burning is constitutionally protected speech, Mr. Trump’s tweet also casually suggests that citizens should lose their citizenship as a ‘penalty’ for such acts,” Vladeck said. “Even if flag burning wasn’t protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign.”
When asked about the Supreme Court rulings on CNN’s “New Day,” Trump transition spokesman Jason Miller repeatedly dismissed questions about the constitutional protections of flag burning.
“Flag burning should be illegal,” 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.”
But Trump’s opposition to the protection of flag burning puts him at odds with conservative leaders like Senate Majority Leader Mitch McConnell and deceased Supreme Court Justice Antonin Scalia, whom Trump has praised as a “brilliant Supreme Court Justice, one of the best of all time.”
Trump himself has tweeted about the importance of free speech, including a message he sent in 2013, quoting George Washington.
“‘If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.’ – George Washington,”