After President-elect Donald Trump distracted everyone over the weekend by claiming he’d won the popular vote (he didn’t), Trump engaged in yet another Twitter rant early Tuesday morning. The topic this time? Whether or not anyone, especially citizens of the United States of America, should be allowed to burn the nation’s flag as a sign of protest, and what kinds of punishment those who do it should face. Considering the number of anti-Trump protests at which American flags have been burned (and Trump’s apparent “love” for the country’s chief symbol), his latest outburst isn’t all that surprising.
What is surprising, however, is the severity of the president-elect’s suggested punishments for those who burn the American flag. (Not to mention his lack of knowledge regarding relevant court cases heard by the Supreme Court of the United States.) “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!”
As CNN points out, all of Trump’s suggestions fly in the face of two pivotal 1980s SCOTUS decisions. The first, Texas v. Johnson, concerned an appeal by Gregory Johnson against the state of Texas, which had previously charged and convicted him of “desecration of a venerated object.” By a 5-4 ruling, the SCOTUS determined Johnson’s flag burning was “symbolic speech” and thereby protected by the First Amendment. A year later, the SCOTUS ruled 7-3 in United States v. Eichman that the Flag Protection Act of 1989 — which Congress passed in response to Texas v. Johnson — was unconstitutional.
Despite this recent history of failed attempts to render flag burning illegal, however, it seems neither Trump nor anyone on his White House transition team has received the memo. At least that’s per transition spokesperson Jason Miller, who sat down with New Day‘s Chris Cuomo soon after his boss’s tweet.
“Can we agree that there’s constitutional law? That burning the flag, as much as we might hate it, is defended First Amendment speech?” Cuomo asked. Instead of acknowledging the host’s main point — that flag burning is protected by the constitution — Miller said “flag burning is completely ridiculous” and tried to move on to his next topic. To his credit, Cuomo wouldn’t budge and said “when the President-elect of the United States says something, we’ve got to listen.” And when he finally pushed Miller for a response to whether or not they could agree that flag burning is constitutionally protected, Miller buckled: “No, we completely disagree … It should absolutely be illegal.”
Needless to say, people had plenty of opinions about whether or not they thought Trump was right to suggest stripping flag burners of their citizenship or imposing jail time. (They didn’t.)