Constitutional Law, Criminal law, Media, Politics, Society

Trump Calls For Punishing Those Who Burn The American Flag

495px-Donald_Trump_by_Gage_SkidmoreDonald Trump has set off a new controversy with a signature early morning tweet. Trump lashed out at those who burn American flags and said that they should be punished for their actions. The problem is that this question was already answered by the Supreme Court, which found that such acts (while despicable) are constitutionally protected under the First Amendment to the United States Constitution.


Early this morning, Trump went on Twitter to say: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”

I have long been critical of those who burn our flag, which I view as a symbol of our constitutional freedoms and the sacrifice of generations to preserve this Republic. However, there are many things that people say or do that I find disturbing or insulting. That does not alter the fact that they are protected expressions of free speech.

481px-Earl_WarrenPresident-Elect Trump does not appear to see it that way. Yet, both the Constitution and the Supreme Court stand in the way of punitive measures for flag burners.  Having said that, Trump’s view has been shared by various justices in history including such liberal icons as Chief Justice Earl Warren in his dissenting opinion in Street v. New York, 394 U.S. 576 (1969).  Likewise, Hillary Clinton supported such a law in 2005.

Nevertheless, in the United States, the destruction of the flag is a protected form of free speech. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia, who Trump has expressed great admiration for. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:

Justice Kennedy
Justice Kennedy

“For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

Congress has shown the same opposition to the decision as Trump. It passed the 1989 Flag Protection Act to make it a federal crime to desecrate the flag. That law was struck down in United States v. Eichman, 496 U.S. 310 (1990).  The Court ruled that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Various congressional members have also sought to pass a constitutional amendment on flag desecration but the proposed amendment has failed in the Senate.  It has been ten years since the last serious effort has been made for an amendment on the issue.  Trump aides might argue that he was not questioning the legitimacy of the decision but supporting a constitutional amendment.

I understand Trump’s anger and I indeed share it when I see the flag burned. However, you do not protect the flag by diminishing the very thing is represented: our constitutional freedoms.

Of course, while Trump cannot change the meaning of the Constitution, he can change the make up of the Court (or support a Flag-Desecration Amendment). Ironically, by replacing Scalia with someone who does not hold as strong a belief in First Amendment rights, he could shift the vote toward a reversal of the 1989 precedent. I hope that that is not the case. It could place this country on a slippery slope of criminalized speech. I prefer to live in a country where tweets and protests are both given ample protection.

217 thoughts on “Trump Calls For Punishing Those Who Burn The American Flag”

  1. “SCIENTISTS, ARCHITECTS, & ENGINEERS now affirm that the 9/11 destruction of the World Trade Center buildings was an inside job. The leading scientist of Scholars For 9/11 Truth, Dr Steven Jones, has proven that controlled demolition devices were placed within the WTC Twin Towers – and this is what brought the buildings down not the airplanes. According to Fox News journalist Jeffrey Scott Shapiro, Larry Silverstein tried on the afternoon of 9/11 to get approval to demolish WTC 7. Shortly before the building collapsed, several NYPD officers and Con-Edison workers told me that Larry Silverstein, the property developer of One World Financial Center was on the phone with his insurance carrier to see if they would authorize the controlled demolition of the building.
    The National Institute of Standards and Technology lied. WTC 7 did not come down due to office fires.

  2. “9/11 WAS AN INSIDE JOB”
    2723 Architects and Engineers are telling us the U.S. Government is Lying about 9/11.
    The U.S. Government is complicit in the murders of 9/11.
    3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11
    Our enemy does not want you to know about the 3rd building, WTC 7. It was not hit by a plane.
    This issue exposes the wide and deep corruption of the governments, courts and media.

    https://youtu.be/kQ2iVymP7hA

    The 9/11 Commission Report fails to mention the total collapse of 47-story steel-framed skyscraper Building 7 at 5:20 on the day of the attack.

    video of Zionist Larry Silverstein admitting demolition of WTC 7;

  6. They talk about Trump in the Bible in his wanting to punish flag burners and omitting evidence of 9/11 and U.S. / Israeli illegal wars.

    Matthew 23 (KJV)
    “Woe unto you, scribes and Pharisees, hypocrites! for ye pay tithe of mint and anise and cummin, and have omitted the weightier matters of the law, judgment, mercy, and faith: these ought ye to have done, and not to leave the other undone. Ye blind guides, which strain at a gnat, and swallow a camel.”

    Google search results which Google has lessened since;

    “israel behind 9/11” about 20,800,000 results

    http://buenavistamall.com/googleresults.jpg

  9. Most of these flag burners couldn’t hack fighting for their country or their communities. They certainly would run like the wind rather than face what those in uniform must endure daily.

    These types talk about how strong they are to stand up and shout insults to us while they burn down a flag. You jackass cowards! When was the last time you got in the shit and came out feeling lucky to be uninjured or alive after doing your job? Huh? Never? It’s because you snots haven’t the courage to pop the bubble of your safe-zone or Mommy’s apron. Put your vanity to the side and do something for your country instead of vomiting a mindless stream of rhetoric about how “oppressive” America supposedly is.

    I don’t know what they taught you in college, but you certainly did not learn the definition of oppression. Go to one of your idyllic countries such as North Korea, Venezuela, Cuba, or the *stan countries. Don’t expect to be rescued by your insolence.

    1. “AS AN ANGLO EUROPEAN white guy from a very long line of white guys, I want to thank all the brown, black, yellow and red people for a marvelous three-century joy ride. During the past 300 years of the industrial age, as Europeans, and later as Americans, we have managed to consume infinitely more than we ever produced, thanks to colonialism, crooked deals with despotic potentates and good old gunboats and grapeshot. . . . Yes, we have lived, and still live, extravagant lifestyles far above the rest of you. And so, my sincere thanks to all of you folks around the world working in sweatshops, or living on two bucks a day, even though you sit on vast oil deposits. And to those outside my window here in Mexico this morning, the two guys pruning the retired gringo’s hedges with what look like pocket knives, I say, keep up the good work. It’s the world’s cheap labor guys like you — the black, brown and yellow folks who take it up the shorts — who make capitalism look like it actually works. So keep on humping. Remember: We’ve got predator drones. . . .” – Joe Bageant

      “The enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economic conquests only, but for political power. The question will arise, and arise in your day, though perhaps not fully in mine: Which shall rule — wealth or man; which shall lead — money or intellect; who shall fill public stations — educated and patriotic free men, or the feudal serfs of corporate capital?” – Edward G. Ryan, Chief Justice of Wisconsin Supreme Court, address to graduating class at University of Wisconsin, 1873.

      ”You develop an instant global consciousness, a people orientation, an intense dissatisfaction with the state of the world, and a compulsion to do something about it. From out there on the moon, international politics look so petty. You want to grab a politician by the scruff of the neck and drag him a quarter of a million miles out and say, “Look at that, you son of a bitch.” – Edgar Mitchell, Apollo 14 astronaut

      1. Steve Groen –

        And having looked to Government for bread, on the very first scarcity they will turn and bite the hand that fed them. Edmund Burke

      2. Hahaha! You’re a riot citing Edgar Mitchell. He’s the guy who claims he healed kidney cancer remotely using a teenage psychic in Canada, telepathically communicated with Earthlings while orbiting in Apollo 14, asked John Podesta to use exterrestial technology to prevent global warming and believes UFOs are aliens from other planets who saved us from the Cold War. Great source, Steve, Eddie The Loon. What’s Big Foot’s opinion on the US?

  10. If American symbols are fair game on First Amendment grounds why can’t I throw red paint on the White House? Smear feces on the Vietnam Veterans Memorial? Cover up the Iwo Jima monument with a huge Rising Sun flag? Dig up the copse of trees at Gettysburg? Doesn’t the integrity of all American symbols yield to the First Amendment?

    1. You seriously don’t see the difference. You do not own the White House. It is government property. You’d be arrested, not because your were exercising prohibited free speech, but because you caused damage to property you do not own. Same thing with the Vietnam Veterans Memorial or digging up the copse of trees at Gettysburg. Your right to free speech is not a winning defense when it comes to damaging property that is not yours. But free speech is a defense if it is your own property you damage or destroy as an act of exercising your right to free speech.As to covering up the Iwo Jima monument with a Rising Sun flag, this one you might get away with since you are not actually damaging the monument.

      1. We own all those symbols. Everyone of them. Why can’t I trash em? If flag burning were illegal, folks would be arrested too. I am making a political statement just like flag burners. Why isn’t that protected. What if I agree to pay for the damage?

  11. When Hillary Clinton was in the Senate, she proposed making flag burning a crime. If you are going to single out Trump, then intellectual honesty required mentioning that half the politicians in Washington have made the same comment or proposal. It is a rite of passage.

  12. Just curious. What happens to someone when they burn a Canadian flag in let’s say, Toronto?

    1. Probably goes unnoticed. Only Americans have this psychological attachment to cloth rectangles.

  13. In one of these flag burning events this week some persons took down a flag owned by a college and burned it. That is arson. Burn your flag then say free speech. Burn my flag and say not guilty by reason of insanity to a felony arson charge.

    1. Lee Harvey Oswald – hadn’t that university lowered its flags to half-mast over the election, or something? Never put shiny objects in front of college students, drunk or sober.

    1. Patriot – everybody must be a Zionist War Criminal except you. Why did you not do your part and assassinate the President? How can you live with that guilt? You could have stopped the whole mess with one little bullet. You are a traitor to the cause. We are all ashamed of you and now turn our backs on you. You are an outcast.

  19. The most powerful form of lie is the omission — George Orwell
    Zionist Trump is lying in omission of monumental crimes against the U.S. & world while empowering International Criminals. He is an accomplice in cover up of Zionist murderous criminality.

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