President-elect Donald Trump suggested Tuesday morning that those who burn the American flag should have their citizenship revoked or be jailed, but his comments flout multiple Supreme Court rulings protecting free speech: even the desecration of the Star-Spangled Banner.
Trump’s threat to retract citizenship for flag burning also violates a 1958 Supreme Court ruling that revoking United States citizenship qualifies as unconstitutional punishment.
The next leader of the United States sent the tweet condemning flag-burning following a recent demonstration at Hampshire College in Massachusetts protesting an American flag that was set on fire. Trump, who did not explicitly mention the Hampshire protest, wrote “there must be consequences” for those who destroy the flag:
But in the 1989 case Texas v. Johnson, the Supreme Court ruled that burning the American flag qualifies as symbolic speech and is protected under the First Amendment. The Texas v. Johnson decision struck down a Texas state law that prohibited flag desecration and ruled that states lacked the authority to “prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Among the five justices in the majority was late Justice Antonin Scalia, who Trump has repeatedly upheld as a model for his future judicial nominees.
And judicial precedent suggests that even if Trump were to take steps toward reversing that decision, the high court would intervene.
After the Texas v. Johnson decision, then-President George H.W. Bush proposed a constitutional amendment that would override the Supreme Court’s designation of flag burning as protected speech, according to Time. Congress had the same idea and passed the Flag Protection Act of 1989, which made defacing the American flag punishable by a fine or imprisonment.
But the Supreme Court disagreed again. In the case United States v. Eichman challenging that law the following year, the court reaffirmed that flag burning qualified as free expression and declared the law was unconstitutional.
Scalia again upheld flag burning as protected speech, though in several interviews before his death acknowledged that he personally felt flag burning warranted imprisonment, even if it was technically constitutional.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said on a panel in 2015, according to the Constitution Center. “But I am not king.”
The Supreme Court’s rulings have remained in place since, though in 2005 then-Sen. Hillary Clinton was one of two senators who proposed a federal law banning flag burning if it threatened to cause “imminent violence.” The bill was never assigned to committee.
Trump’s transition team communications director Jason Miller defended Trump’s tweet later Tuesday morning on CNN, saying he “completely disagrees” that desecrating the flag is a constitutional right.
“Flag burning should be illegal,” he added, according to CNN.