Donald Trump suggested via Twitter on Tuesday that burning the American flag should be criminalized, and that those who burn the flag should be jailed or have their citizenship revoked.
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 (@realDonaldTrump) November 29, 2016
The burning of the American flag as a form of protest has been highly contested for decades, particularly since the practice became more mainstream during the Vietnam War. Back in 1968, Congress first passed the Flag Protection Act that criminalized the burning of the American flag. However, the Supreme Court overturned the law – and similar state regulations – in the 1989 case Texas v. Johnson, claiming the laws imposed unconstitutional restrictions on free speech and violated the First Amendment.
The high court ruled again in 1990 during a similar case that flag-burning was a constitutionally protected right.
In the years that followed, flag burning has become a well-publicized and fairly common form of protest. Protestors who disagreed with the outcome of the 2016 presidential election, in which Republican nominee Donald Trump defeated Democrat Hillary Clinton in the Electoral College but lost the popular vote, have routintely burned flags in the streets during marches and rallies in recent weeks. While flag-burning is a protected form of free speech according to the court, many who have done so in public spaces have been arrested and charged with violating local fire ordinances.
Although Trump’s tweet came early Tuesday morning, it took only moments for his suggestion of jailing flag-burners to hit the media’s airwaves. Pressed on the subject, Trump spokesman Jason Miller told Chris Cuomo that “flag burning should be illegal,” but didn’t comment on the constitutionality of any regulations that would criminalize burning the flag.