Following widespread criticism of President-elect Donald Trump over a tweet in which he called for the criminalization of burning the American flag, his supporters pointed out that former Democratic presidential candidate Hillary Clinton also once supported criminalizing the act of American flag burning.
On Tuesday, November 29, Trump tweeted that citizens and residents who burn the U.S. flag during demonstrations and protests should face punishment.
“Nobody should be allowed to burn the American flag,” Trump tweeted. “If they do, there must be consequences—perhaps loss of citizenship or year in jail!”
Trump’s tweet came under heavy criticism, with many saying that it threatened the First Amendment.
But some Trump supporters fired back, saying that Hillary Clinton had also supported criminalizing flag burning in the past. They pointed out, correctly, that in 2005, then-Senator Hillary Clinton co-sponsored a bill — S.1911, The Flag Protection Act of 2005 — introduced by then-Senator Robert Bennett, Republican from Utah.
Other co-sponsors of the bill were Senator Thomas Carper of Delaware, former Senator Mark Pryor of Arkansas and Senator Barbara Boxer of California.
The bipartisan bill, introduced as a compromise to a proposed constitutional amendment to ban flag burning, criminalized the act by recommending a fine of $100,000 and year in prison for offenders, despite multiple previous rulings by the Supreme Court — 1989 and 1990 — that flag burning is protected under the First Amendment.
The bill was never passed. It fell one vote short of the required two-thirds majority, according to the Washington Post.
The sponsors of the bill argued that flag burning often went beyond speech protected under the First Amendment because it was often used to threaten individuals and incite violence.
“The flag of the United States is a unique symbol of national unity and represents the values of liberty, justice and equality,” the bill said. “Abuse of the flag causes more than pain and distress to the overwhelming majority of the American people and may amount to fighting words or a direct threat to the physical and emotional well-being of individuals.”
“Any person who shall intentionally threaten or intimidate any person or group of persons by burning, or causing to be burned, a flag of the United States shall be fined not more than $100,000, imprisoned for not more than 1 year, or both,” the bill continued.
It also proposed a maximum fine of $250,000 and two years in prison if the desecrated flag was a property of the U.S. government.
But unlike Trump, it did not recommend loss of citizenship for flag burning.
However, Trump supporters who accused Democrats and Clinton supporters of hypocrisy by citing the fact that Clinton also supported criminalizing flag burning appear to have overlooked the fact that liberal Democrats had vehemently opposed the flag protection bill, as a New York Times article by Anne Kornblut noted.
According to Kornbult, Clinton’s position on flag burning drew “the scorn of the liberal Democratic base.”
A New York Times opinion piece also attacked Clinton, accusing her of “pandering.”
“Flag-burning hasn’t been in fashion since college students used slide rules in math class and went to pay phones at the student union to call their friends,” the Times commented.
According to the Times, the attempt by Clinton to defend the bill by equating it with cross-burning was ridiculous because “burning a cross is a unique act because of its inextricable connection to the Ku Klux Klan and to anti-black violence and intimidation.”
“A black American who wakes up to see a cross burning on the front lawn has every right to feel personally, and physically, threatened. Flag-burning has no such history. It has, in fact, no history of being directed against any target but the government.”
Flag burning is a common aspect of protests, especially on college campuses. Flag burning as an act of protest has been the subject of heated debates on campuses, Newsweek observed.
Critics of the act say it disrespects the nation and the sacrifice of veterans who died for the nation.
But flag burners sometimes justify the act as a protest against the flag as a symbol of “exclusion” in the context of national history alleged to have benefited European Americans at the expense of minorities, such as Native Americans and African-Americans.
The Brown Daily Herald quoted a comment by a minority student at Brown University after American flags set up to celebrate Veterans Day were vandalized.
“When I look at them (American flags), all I feel is overwhelming nausea, and all I see is a symbol of the oppressing white nationalism that has jeopardized myself and so many others.”
“It’s just a difference of how you see the flag because for some people, it’s this sign of oppression and racial dominance and bigotry and imperialism,” another student said. “And it’s pretty much a flag of evil. And if I thought that way about the flag, I’d be stomping on it too. At the same time, it’s painful for us.”
Experts have noted, however, that there has been a clear bipartisan consensus that the First Amendment protects the right to burn the flag, regardless of the merits or demerits of arguments used to justify it.
“I think the truth is those [Supreme Court] decisions were right, and over time, people have come to accept them,” said Geoffrey Stone, a professor at the University of Chicago Law School, according to Newsweek.“Until Donald Trump just said this, this has not been a big issue.”
Stone also noted that even the late Antonin Scalia had agreed that flag burning was protected speech.
[Featured Image by Beck Diefenbach/AP Photo]