Trump tweets about flag burning, setting off a battle
President-elect Donald Trump touched off a heated battle Tuesday over the limits of the First Amendment when he tweeted that flag burners should be stripped of their citizenship or jailed.
“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.
The suggestion was met with widespread condemnation and both Republicans and Democrats said Tuesday that the constitutional amendment needed to make Trump’s proposal possible is a no-go.
“I do not support or believe in the idea of people burning the American flag, but I support the First Amendment,” House Majority Leader Kevin McCarthy (R-Texas) told reporters. “In my district, we honor the flag; we don’t burn the flag. I don’t understand why someone would want to burn the flag.”
Others were more strident.
“Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment,” tweeted Rep. Justin Amash (R-Mich.), a member of the conservative House Freedom Caucus who was elected as part of the Tea Party wave — a movement known for its originalist interpretations of the Constitution.
It wasn’t immediately clear what prompted Trump’s missive. The timing of the tweet coincided with a 6:25 a.m. Fox News segment about Hampshire College students burning the American flag two days after the presidential election to protest his victory.
Trump transition spokesman Jason Miller immediately doubled down on the tweet, saying repeatedly on CNN, “Flag burning should be illegal.”
Some argued that the tweet was an intentional effort to distract the media from covering his web of international business dealings, while others said it demonstrated the president-elect’s tendency to obsessively watch and react to cable news.
But not long ago, the idea of amending the Constitution to make desecrating the American flag a crime was a widely popular idea — among both Republicans and Democrats.
Two 5-4 Supreme Court decisions — one in 1989 and one the following year — affirmed that the First Amendment protects the right to burn the flag as an expression of “symbolic speech.” The 1990 decision, United States v. Eichman, struck down a subsequently enacted law outlawing burning the flag, passed by Congress in response to the 1989 decision.
Congress has several times since attempted to pass a resolution amending the Constitution to allow prohibition of the act.