Donald Trump tweeted Tuesday morning that he believes burning the American flag should be treated as a crime, and if you do it, you should go to jail or lose your citizenship.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
It’s unclear what prompted the tweet — there haven’t really been any flag-burning cases in the news of late. The closest thing is a story out of Massachusetts. As reported by the Inquisitr, Hampshire College made the decision to remove the American flag from campus after the college’s president deemed it a “divisive symbol.” Weeks ago, the college had decided to lower the flags around campus to half-staff, symbolically mourning Trump’s election. That wasn’t good enough for at least one student. He or she burned the flag, leading to the administration’s decision to remove it entirely.
That decision was met with protests from veterans’ groups, and on Sunday, about a thousand showed up to express their feelings. And but for one man trying to photobomb a group of veterans trying to take a selfie, the counter protest was peaceful, with no known reports of flag burning.
— John Davis (@TheFoundingSon) November 29, 2016
According to the First Amendment Center, 47 states have, or had, laws on the books preventing the desecration of the American flag, burning or otherwise. And in the past few years, at least one person has been arrested and brought before a judge for desecrating the flag.
As Native Times reported in February, Joshua Brubaker, a Native American man living in central Pennsylvania, painted the letters “AIM” (American Indian Movement) on an American flag, then hung it upside down in front of his house (an upside-down flag is traditionally recognized as a symbol of distress).
— ✛Oitancan Mani✛ (@OitancanMani) July 25, 2016
He was arrested and charged with violating Pennsylvania’s flag; a judge later dismissed all charges against him, and Brubaker has since filed a lawsuit.
In fact, the Supreme Court has ruled, twice, that “desecrating” the American flag, through burning or any other means of expression, is protected free speech, guaranteed by the First Amendment. In Texas v. Johnson, 1989, the Court ruled in favor of a man who had been charged with burning the American flag outside of the Republican National Convention. Justice Anthony Kennedy noted that burning the flag may be disgusting, but the Constitution protects your right to be disgusting.
“Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
That means that all of those state-level flag desecration laws are un-Constitutional, as would be any attempt by Donald Trump to make flag burning a crime.
And in order for flag-burning to be made a crime, it would require a Constitutional amendment — something that several politicians have attempted to do over the years. However, those attempts have gone nowhere, and flag burning remains legal for the foreseeable future, Donald Trump notwithstanding.
Do you believe that burning, or otherwise descrating, the American flag should be a crime, as Donald Trump suggests? Share your thoughts in the poll below.
[Featured Image by David Furst/Getty Images]