President-elect Donald Trump, who once filed a $25 million lawsuit asserting his right to fly a large American flag outside his Mar-a-Lago Club in Palm Beach, ignited a new debate over Old Glory on Tuesday when he suggested jail and loss of citizenship for those who burn the American flag.
Trump floated the idea on Twitter at 6:55 a.m., sparking discussion not only about the First Amendment but on how much significance to attach to the president-elect’s seemingly unfiltered musings on social media.
“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 at the beginning of a day in which he also received an intelligence briefing and met in New York with potential Cabinet appointees.
The U.S. Supreme Court ruled in 1989 and 1990 that burning the flag is a form of expression protected by the First Amendment. The majority in those cases included the late conservative Justice Antonin Scalia, for whom Trump has often professed admiration.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015. “But I am not king.”
It wasn’t clear whether Trump plans to take any action on the Twitter thought, such as pursuing a constitutional amendment or legislation to ban flag burning.
“I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Trump spokesman Jason Miller said on CNN when asked about the tweet.
“A tweet is not a serious policy proposal,” said Howard Simon, the president of the Florida chapter of the American Civil Liberties Union. “I’d like to think that on any serious reflection on his part or any advice from attorneys he’ll realize that’s not a serious policy proposal. So I’d like to give him the benefit of the doubt. I presume this is off the top of his head. But I’m sure that on any reflection he’ll realize that the right to protest is one of the things that makes America great.”
U.S. Rep. Ted Deutch, D-Boca Raton, expressed frustration at Trump’s ability to use social media to drive discussion.
“The president-elect tweeted this morning about stripping away someone’s citizenship for burning a flag. That’s an issue that the Supreme Court has spoken clearly on,” Deutch said.
“When he tweets something like that, we spend the entire day chasing that story, tweeting about it and talking about it instead of talking about the other constitutional issue that ought to be occupying our time now, and that’s the potential massive conflicts of interest that await the president-elect if he doesn’t take action,” Deutch said, referring to Trump’s business interests in multiple foreign countries.
Past efforts to ban or restrict flag desecration have received support from some Democrats, including Hillary Clinton and Florida U.S. Sen. Bill Nelson.
As a New York senator in 2005, Clinton cosponsored a “Flag Protection Act” that called for up to one year in prison and up to $100,000 in fines for anyone “who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace.”
The Senate, controlled by the GOP at the time, never acted on that bill.
The House passed a constitutional amendment to ban flag desecration in 2005. The only current member of Palm Beach County’s delegation who was in Congress at the time, Democratic Rep. Alcee Hastings of Delray Beach, voted against the measure.
The House-passed amendment failed in the Senate in 2006 with 66 votes — falling one vote short of the two-thirds majority needed to amend the constitution. Clinton and then-Sen. Barack Obama of Illinois were among 31 Democrats and three Republicans voting against the proposed constitutional amendment. Nelson was one of 14 Democrats and 52 Republicans who supported the amendment.
Trump in 2006 ran afoul of the town of Palm Beach when he erected an 80-foot flagpole and flew a 15-by-25-foot stars and stripes from it. The town cited Trump for not getting a permit and for exceeding a 42-foot height limit for flagpoles. Fines reached $120,000.
Trump sued the town for $10 million, then raised the figure to $25 million, claiming the town was selectively enforcing its rules and depriving him of his constitutional rights. He dropped the suit in 2007 under a settlement in which the town waived its fines and Trump agreed to a 70-foot pole and to pay $100,000 to a veterans group.
The Palm Beach flag flap came up in an October presidential debate between Trump and Clinton when moderator Chris Wallace asked Trump about a Washington Post report that tax records showed the $100,000 donation to the veterans group came not from Trump himself or one of his businesses, but from his nonprofit Donald J. Trump Foundation, a charity funded almost entirely by other people’s money.