Trump wants flag burners punished. Political correctness run amok?

A 1989 US Supreme Court ruling, however, says that flag burning is protected under the First Amendment.

Stephen Lam/Reuters/File
A demonstrator runs while holding a burning flag during a demonstration following the election of Donald Trump, in Oakland, Calif., on Nov. 10.

Donald Trump's Twitter account continues to generate controversy as the president-elect prepares to take office in January. The president-elect tweeted an impassioned critique of flag burning, calling for jail time or even revocation of citizenship for those who went through with the practice.

For some, the Star-Spangled Banner is an almost sacred symbol, the burning of which amounts to a desecration of the ideals and freedoms for which America stands. For others, it is simply a piece of cloth that holds no intrinsic meaning. Flag burners themselves tend to be somewhere in the middle of this spectrum, ascribing the flag enough power to shock and push others into action, while highlighting some failure of the country to uphold the standards it purports to represent.

President-elect Trump's tweet notwithstanding, flag-burning is protected under the First Amendment of the US Constitution, a protection that has resisted multiple efforts by lawmakers over the years to create an exception. But as Trump's recent election to the White House continues to divide the American public and spark demonstrations, including flag burning, it is possible that dissenting opinions on the protest may once again come to the forefront.

In 1923, the United States Flag Code was adopted by the American Legion's National Flag Conference and was adopted by Congress in 1942. The code outlines the proper practices for handling the American flag, including when and how to raise and lower the flag, proper saluting procedure for both civilians and military, and rules for when the flag can be flown at half-staff. The code also includes penalties for desecrating the flag, including a fine or even up to a full year of jail time for "whoever knowingly mutilates, defaces, physically defiles, burns, [or] maintains [the flag] on the floor or ground."

These penalties are not enforced today.

"In a 1989 case called Texas v. Johnson, the Supreme Court ruled – in an opinion written by the 'liberal' Justice Brennan and joined by the 'conservative' Justice Scalia that burning or desecrating the Flag is, or can be, symbolic speech that is protected by the First Amendment," Richard Garnett, professor of law and political science at the University of Notre Dame in Indiana tells the Christian Science Monitor in an email. "Although governments are allowed to ban or punish expression that amounts to a true threat or that constitutes an incitement to imminent violence, officials generally cannot punish expression simply because it is offensive or unpatriotic."

Since 1989, there have been multiple appeals to change or go around this ruling, the most recent of which occurred in 2006. All attempts to do so have failed so far.

But even if flag-burning became illegal, stripping citizenship as a punishment for a criminal act, as suggested in Trump's tweet on Tuesday, would also be unconstitutional, explains Kevin Saunders, professor of law and Charles Clarke Chair of Constitutional Law at Michigan State University in East Lansing.

"The 14th Amendment says that all those born here or naturalized are citizens. Simple violation of a law by a citizen cannot lead to the loss of that citizenship," Dr. Saunders tells the Monitor in an email. "Citizenship may be renounced and may be lost through treason but not for this sort of what amounts to political speech."

Nevertheless, critics of the ruling have claimed that flag burning is a treasonous action.

Saunders also says that a number of other countries, like the United States, also have rules to protect their flags. Like the US, many of these countries' penalties for not following these rules also tend to go unenforced. But the vitriol against someone who burns a flag can hit many people in a very personal way, especially if they have connections to traditionally patriotic institutions like the military.

"Although the flag is, to some, 'just a piece a cloth,' there is no doubt that many people are, quite reasonably, offended and angered by acts that disrespect the flag," says Dr. Garnett. "They might believe, quite reasonably, that such acts denigrate the sacrifices that so many have made for our freedoms. Nevertheless, it is well-established that speech – especially political speech – does not lose protection just because it is offensive."

Trump could not make flag-burning illegal on his own, if were to pursue the topic as president. Such a law would have to go through Congress. Neither would he able to overturn the Supreme Court ruling himself. And while it might seem that a Republican supermajority might be more receptive to making the practice illegal, it should be noted that the 1989 ruling upholding the right of protesters to burn the flag was supported at the time by conservative Associate Justice Antonin Scalia, despite his own strongly negative opinion of such the protestors.

"If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," Justice Scalia said in 2015, according to Politico. "But I am not king."

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