Donald Trump: Americans Burning US Flag Should Go to Jail, Lose Citizenship

Donald Trump hugs the American flag at a Florida campaign rally in October 2016.

President-elect Donald Trump has released a statement calling for stiff penalties for those who burn the American flag. Trump’s proposal states the act of burning an American flag should be a crime — presumably a nationwide Federal crime — hand-in-hand with with harsh punishments for those who would violate the imagined new law prohibiting burning an American flag.

Trump Demands American Flag Burners be Criminally Charged and Punished

In an early morning Twitter post on Nov. 29, 2016, Trump wrote: “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

Trump’s Possible Motivations for Seeking to Criminalize Burning the American Flag

It is unknown what event if any may have inspired Mr. Trump to write the tweet, but it may have been in response to recent events at Hampshire College in Massachusetts where an American flag was burned. School administrators took down all flags on campus after students set an American flag on fire.

Mr. Trump has long been a vocal proponent of putting America first. Presumably he intends to extend new circles of protection around not just the nation as a whole, but also to the symbol of the United States, our American flag.

While Mr. Trump did not serve in the military, he did attend a military academy in his youth that may have played a part in molding his love of country and his desire that the American flag be respected and protected.

Donald Trump hugs the American flag at a Florida campaign rally in October 2016.
Donald Trump displaying great affection for the American flag at a Florida campaign rally in October 2016, where he gives Old Glory a bear hug.

Donald Trump Considers Various Punishments for Flag Burners

Mr. Trump’s statement suggests that the President-elect and use of the word “perhaps” may imply Mr. Trump has not decided on the exact nature of the punishment he wishes to impose on those who would burn an American flag. However, Mr. Trump seems to have narrowed down some top contenders for punishments for flag burning. Due to the short nature of posting on Twitter, there exists only a limited amount of information within the tweet. We are left in a position of interpretation as to the characteristics of any proposed new laws Mr. Trump would seek to to prohibit and punish those who would burn an American flag.

Trump: A Year In Jail for Flag Burners

Among the proposed punishments for burning an American flag, Mr. Trump proposes a year in jail. It is unclear whether Mr. Trump envisions that violators convicted of flag burning would be sentenced to serve time in a federal penitentiary, as is the case for violators of federal laws who are sentenced to imprisonment. The Federal Bureau of Prisons is a federal law enforcement agency charged with the administration of the federal prison system. The F.O.B is also a subdivision of the United States Department of Justice. The Justice Department is headed by the Attorney General. A new Attorney General will be nominated by now President-elect Donald Trump after Mr. Trump is sworn in and takes office. If President Trump wishes to aggressively pursue making American flag burning a federal crime, it would be Trump’s Justice Department and its head, the Attorney General, who would be the spearhead of any such effort. If new anti-flag-burning laws were proposed on the local level, their jurisdiction would be limited to the areas in which the laws were passed and would not cover the nation as a whole. The term “jail time” usually refers to the local county or city jail system, in which convicts, or those held in custody while awaiting trial, are imprisoned usually for terms not exceeding one year. Typically those convicted of crimes and sentenced to periods in excess of one year are remanded to the custody of the state prison system.

Trump: Loss of Citizenship for Burning the American Flag

President-elect Trump also proposes that anyone burning an American flag may be subject to loss of United States citizenship as punishment. It is unclear whether this punishment would be combined with the possible year-long imprisonment.

The Constitutionality of Stripping American Citizens of their Citizenship as Punishment

In 1958, the Supreme Court ruled that losing one’s citizenship as a form of punishment fell within the purview of the Eighth Amendment, which prohibits cruel and unusual punishment. During World War II, a private in the US Army who deserted from a stockade in Morocco and surrendered the next day was court martialed, convicted of desertion, and sentenced to three years hard labor, loss of pay, and dishonorable discharge. When he tried to obtain a passport years later, in 1952, he was denied on the grounds that a soldier who deserts loses his citizenship, as prescribed in the Nationality Act of 1940. Lower courts supported the Government’s stance. However, when the case wound up in the Supreme Court, the justices ruled 5-4 that revoking citizenship as a form of punishment is unconstitutional. Chief Justice Earl Warren wrote that “denationalization as a punishment is barred by the Eighth Amendment.” He went on to describe such punishment as “a form of punishment more primitive than torture” because it evokes the “total destruction of the individual’s status in organized society.” Dissenting Justice Felix Frankfurter noted that desertion can be punished by death, and reasoned that losing one’s citizenship could not be seen as a fate worse than death. He wrote, “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”

One of Felix Frankfurter’s fellow Supreme Court judges, Hugo Black, wrote: “Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power.”

Officials Respond to Trump’s Call to Criminalize Burning American Flag

Current Senate Majority Leader Mitch McConnell, who also voted against the 2006 proposed Amendment, responded when asked at a press availability function about Donald Trump’s comments:
“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. I happen to support the Supreme Court’s decision on that matter,” McConnell said. In a 2006 op-ed, McConnell wrote, “No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.”

Trump senior communications advisor Jason Miller was pressed about Trump’s comments on CNN, responding that “Chris, flag burning is completely ridiculous. And I think you know that and I think the vast majority of Americans would agree,” Miller told CNN anchor Chris Cuomo. “Flag burning should be illegal,” Miller concluded. “End of story.”

Senator John McCain, who fought in the Vietnam war and was taken prisoner, and who has clashed with Trump during the campaign, said, “I do not approve of burning the flag. I think there should be some punishment, but right now, the Supreme Court decision is that people are free to express themselves that way.”

Supreme Court Rulings Protecting Flag Burning under First Amendment

Flag burning has been ruled on multiple occasions by the United States Supreme Court to be a Constitutionally-protected form of Free Speech, protected under the First Amendment. Multiple Supreme Court decisions have found flag burning to be protected under the First Amendment. In 1989, the Supreme Court struck down a Texas law that criminalized flag burning. The 5-to-4 decision held that burning an American flag is protected under the First Amendment. The Supreme Court ruling protecting flag burning as protected Free Speech was reaffirmed in 1990. In both cases, the Supreme Court ruled that burning a flag is an act of expression and “symbolic speech,” which falls under First Amendment protections.

Congress Votes to Protect American Flag from Desecration

Congress passed the first Flag Protection Act in 1968 in response to anti-Vietnam War demonstrations at which the American flag was sometimes burned in protest to the United States’ involvement in the war. In time, 48 of 50 U.S. States passed similar state laws. All of these statutes were overturned by the Supreme Court 20 years later, following the Supreme Court overturning the conviction of Gregory Lee Johnson, who was charged with burning an American flag in Texas in protest of President Ronald Reagan’s policies.  Congress responded by passing another Flag Protection Act, which was also found to be unconstitutional.

Supreme Court First Ruled to Protect Flag Burning in 1989

The Supreme Court first ruled that flag burning is a form of symbolic free speech protected under the First Amendment in 1989, and then re-affirmed in a second Supreme Court in 1990. The individual who burned the American flag in the 1989 case was filmed again burning an American flag outside the Republican National Convention this past summer, where he accidentally lit himself on fire and was extinguished by police. He burned another American flag outside the Democratic National Convention.

American flag burning protester Joey Johnson burns an American flag outside the Democratic National Convention. Johnson's 1989 flag burning case rose to the Supreme Court where flag burning was found to be a protected form of free speech under the First Amendment.
American flag burning protester Joey Johnson burns an American flag outside the Democratic National Convention. Johnson’s 1989 flag burning case rose to the Supreme Court where flag burning was found to be a protected form of free speech under the First Amendment.

Many Attempts to Criminalize Flag Burning – Including by Hillary Clinton

The first flag In the years following the Supreme Court ruling that burning an American flag is a protected form of symbolic free speech, there have been multiple proposed bills to amend the Constitution to make burning an American flag a crime. From 1995 through 2005, the House of Representatives biennially passed a Flag Protection Bill by the required 2/3 majority vote, but the bill always failed to hit the required supermajority in the Senate.

The proposed Amendment has passed the United States House of Representatives several times. The full text of the Amendment reads:

The Congress shall have power to prohibit the physical desecration of the flag of the United States. 

The definition of “desecration” is open to some debate. For example, it remains an open question as to whether flags such as that depicted below, with corporate logos in place of stars, would be considered desecration.

An open question remains as to whether an American flag with logos in place of stars would be considered flag desecration.
An open question remains as to whether an American flag with corporate logos in place of stars would be considered flag desecration.

Although the topic of flag burning or flag desecration was not discussed in the Presidential debates, former Presidential candidate Hillary Clinton presumably holds the same view as Donald Trump that burning of an American flag should be illegal and criminalized. In 2005, then-Senator Hillary Clinton co-sponsored legislation that if passed would have criminalized flag burning. The bill was called the Flag Protection Act. If passed, the bill would have provided for punishments for flag burning of up to $100,000 and imprisonment of up to a year — potentially both. The bill was never presented to Congress and as such was not passed. The Supreme Court never had the opportunity to determine the constitutionality of the bill because it was not passed by both houses of Congress, as is required for a bill to become law. Then-Senator Clinton voted against a similar bill that came to the floor of the Senate in 2006. Over many years, there have been several bills that proposed a Constitutional Amendment to prohibit or criminalize burning an American flag. None has passed.

Americans Respond in Polls to Flag Burning Amendments

In 1999, A Gallup Poll indicated that 63% of Americans favored an Amendment to the Constitution to make burning an American flag illegal. A Summer 205 poll by the First Amendment Center found that 63% of Americans opposed such a flag protection amendment.

Conservative Supreme Court Justice Scalia Defends his Decision to Side to Protect Flag Burning

Even conservative Justice Antonin Scalia agreed with the majority of the Court that flag burning could not be made illegal without violating an individual’s First Amendment rights protecting Free Speech. Scalia said he based his decision on a textual interpretation of the Constitution. Years later in 2015, Scalia said, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”

In a 2012 interview with CNN, Scalia said, “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. I mean that was the main kind of speech that tyrants would seek to suppress. Burning the flag is a form of expression.  Speech doesn’t just mean written words or oral words. It could be semaphore. Burning a flag is a symbol that expresses an idea. ‘I hate the government, the government is unjust,’ or whatever.”

Any New Flag Burning Laws Likely to be Challenged

Any new laws proposing loss of citizenship as a form of punishment for burning the American flag would likely find themselves facing a challenge within the United States Supreme Court. Loss of citizenship for flag burning would likely be challenged as being unconstitutional on the grounds of cruel and unusual punishment.

Any new federal or local laws seeking to criminalize the burning or desecration of American flags would also likely find themselves challenged for their constitutionality based on the previous Supreme Court decisions which protect flag burning as a symbolic act protected under Free Speech.

Trump Likely to Have Chance to Nominate Supreme Court Justice Willing to Criminalize Flag Burning

That Mr. Trump will likely have the opportunity to nominate at least one new Supreme Court justice could potentially have an effect on how the Court could rule on any new flag burning laws or amendments. It remains to be seen if President-elect Trump will use a potential nominee’s stance on flag burning as a qualification for consideration.