Burning The American Flag: A Crime or Protected Speech?

Created: 29 November, 2016
Updated: 17 October, 2022
2 min read

On Tuesday morning, President-elect Donald Trump posted to Twitter:

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

His comments follow a series of demonstrations at Hampshire College in Amherst, Massachusetts over the last week. The flag was lowered to half-staff on Wednesday, November 9, and, at some point Thursday evening or early Friday morning, the lowered flag was removed and burned. The details of the incident are still under investigation.

While the school initially replaced the flag, Hampshire College President Jonathan Lash issued a statement on November 18 indicating that all flags would be removed from the college flagpole for the time being. Lash explained that he hopes the decision will diffuse the hate speech surrounding the matter. Lash said in the statement, “We hope this will enable us in the near term to instead focus our efforts on addressing racist, misogynistic, Islamophobic, anti-immigrant, anti-Semitic, and anti-LGBTQ rhetoric and behaviors.”

On Sunday, hundreds of veterans and other supporters gathered en masse, calling for the school to reverse the decision.

The events have resurrected questions over the reach of constitutional protections – namely, free speech. Minutes after Trump took to Twitter, Trump spokesman Jason Miller told CNN's Chris Cuomo that flag burning is not a constitutional right.

“Flag burning should be illegal,” he said in the interview. “The President-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”

Currently, flag burning is considered to be a form of free speech. In 1989, the Supreme Court upheld the right for protesters to burn the flag. A year later, the court ruled that laws prohibiting flag burning were in violation of the First Amendment and were thus unconstitutional.

Since then, there have been initiatives to reinstate a ban on flag burning. In 2005, then-Senator Hillary Clinton co-sponsored the Flag Protection Act, which sought to criminalize flag burning in cases that intentionally incited violence. Had it passed, the Act would have jailed those convicted of flag burning for up to a year – a punishment in line with that suggested by Trump – and/or imposed fines of up to $100,000.

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The difference between Trump and Clinton, in this case, is Trump’s suggestion that Americans could potentially lose their citizenship for burning a flag. In 1958, the Supreme Court ruled that the revocation of U.S. citizenship as a form of criminal punishment is unconstitutional. The court decided the case on the grounds that denaturalization, or the practice of revoking U.S. citizenship, is a form of “cruel and unusual punishment,” and therefore violates the Eighth Amendment.

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