President-elect Donald Trump has not shied away from stirring up controversy in just 140 characters, despite his impending inauguration. The latest uproar comes after Trump tweeted U.S. citizens that burn the American flag in protest should be thrown in prison, and perhaps have their citizenship revoked.
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
This is problematic in two ways. First, the Supreme Court has already ruled flag burning is a legally acceptable form of protest. United States v. Eichman reaffirmed that right in 1990 by a vote of 5–4. It should be noted that the late conservative judge Antonin Scalia believed desecration of the flag should be legal. Interestingly, the subject came up at an event in 2015 before his death.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. However, he added, “I am not king.”“If I were king, I would not allow people to go around burning the American flag — however, we have a First Amendment which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government,” he continued.
The second issue with Trump’s tweet is that the Supreme Court has already ruled that revoking someone’s citizenship as punishment for a crime is not constitutional. That case, Afroyim v. Rusk, was settled in 1967. As the Washington Post deftly put it, “It’s not easy to run afoul of two constitutional amendments in 140 characters.”
Many of Trump’s fellow Republicans, including Senate Majority leader Mitch McConnell, were quick in their attempts to squash the issue.
“The Supreme Court has held that that activity is a protected First Amendment right, a form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech,” McConnell said. “I happen to support the Supreme Court’s decision on that matter,”
McConnell was not the only Republican voice to speak out against the president-elect’s tweet, including the predictable chorus of Democrats that rebuked his views. Although Trump may have been just testing the waters, the answer was loud and reverberating.
[CNN] [Washington Post] [USA Today] [Politico] [Photo courtesy Stuart Sipkin/Demotix/Corbi via New York Daily News]