President-elect’s Tuesday tweet that, “Nobody should be allowed to burn the American flag — if they do, there must be consequences – perhaps the loss of citizenship or year in jail!” has once again stirred up a hornet’s nest in the U.S. on this contentious issue.
The burning or desecration of the flag of the United States, within the country or overseas, is more often than not, in protest of the policies, national or foreign, of the American government. In the U.S. it is considered legal under the first amendment to the U.S. Constitution as a form of freedom of speech.
Trump’s Tuesday tweet on the controversial subject has rejuvenated a debate that was settled more than 25 years ago in favor of the freedom to express one’s dissatisfaction with the government and its policies, even if it involved burning the American flag.
The Supreme Court has, in fact, twice affirmed the right to burn the American flag as a right to freedom of speech in cases before the high court in 1989 and 1990.
In the 1989 case “Texas Vs Johnson” the Supreme Court ruled 5-4 in favor of flag burning as a form of “symbolic speech” protected by the First Amendment in an appeal from Gregory Johnson who had been found guilty in the case by a Texas court.
In 1990, the Supreme Court again affirmed the right to burn the American flag in the case “United States Vs Eichman” by a 5-4 ruling that deemed the Flag Protection Act of 1989 – passed by Congress after the Johnson decision – as unconstitutional.
Steve Vladeck, CNN legal analyst, and professor at the University of Texas Law School said Trump’s suggestion that citizens be expatriated as a penalty is also an unviable proposition.
“In addition to ignoring the Supreme Court’s clear teaching that flag burning is constitutionally protected speech, Mr. Trump’s tweet also casually suggests that citizens should lose their citizenship as a ‘penalty’ for such acts,” Vladeck said. “Even if flag burning wasn’t protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign.”
In a 2012 interview with CNN, Justice Scalia defended the right to burn the flag, explaining his judicial opinion on the subject although personally, he had a different outlook.
“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,” Scalia said.
“I mean that was the main kind of speech that tyrants would seek to suppress,” he added. “Burning the flag is a form of expression — speech doesn’t just mean written words or oral words — burning a flag is a symbol that expresses an idea. ‘I hate the government, the government is unjust’, or whatever.”
There have been numerous attempts in the past by the Congress to criminalize flag burning to no avail including a bill sponsored by the then New York Senator Clinton in 2005.
Although allowed by the Constitution as free speech, America is divided on the issue of flag desecration of any kind.
In a survey conducted in 2006 by Gallup-USA Today 56percent were in favor of criminalizing the so-called offense, while 41 percent opposed outlawing flag burning.
In 2011 another survey by the State of the First Amendment revealed 39 percent in favor of criminalizing flag desecration while 58 percent opposed it.
However, in many countries, flag desecration of any kind is deemed unconstitutional & illegal and punishable by imprisonment and /or monetary penalty.