President-elect Donald Trump declared Tuesday that people who burn the American flag need to be punished, suggesting on Twitter that either "loss of citizenship" or one "year in jail" would be appropriate consequences.
"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 tweeted.
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 (@Donald J. Trump)1480420513.0
Trump's statement breaks with accepted American law, namely that burning the American flag is a protected right under the First Amendment.
The right was affirmed as constitutionally protected in 1989 after a Texas man, Greg Johnson — who at the time was a member of a communist club — was arrested in 1984 after he burned an American flag while protesting the Reagan administration and several Dallas companies. That year, the Republican National Convention was held in Dallas.
Johnson was eventually fined $2,000 but sentenced to a year in prison for violating a Texas law that prohibited the vandalization of respected objects, such as the American flag.
On his first appeal, his conviction was upheld. After he appealed his conviction again, this time to the Texas Court of Criminal Appeals, they overturned his conviction on the basis that the First Amendment protects symbolic speech. The appeals court then asked the U.S. Supreme Court to hear the case.
In late June 1989, in deciding Texas v. Johnson, the high court handed down their controversial 5-4 decision, affirming what the Texas Court of Appeals had decided: that indeed, the First Amendment of the Constitution protects a person's right to burn the American flag without consequence.
The decision invalidated the laws of 48 of 50 U.S. states, which outlawed desecration of the flag at the time. The decision also reaffirmed many previous cases that were decided on the basis that freedom of speech doesn't simply apply to the spoken and written word.
This is not the first time Trump has advocated for clamping down on actions protected by the First Amendment. He has also discussed "opening up" the libel laws against the media, which would effectively restrict the free press over increased fear of frivolous lawsuits.