Donald Trump has warned that people who burn the American flag could face a year in prison if he is re-elected to the White House in November. Speaking at a rally in St. Cloud, Minnesota, Mr. Trump referred to protests that erupted across America after war broke out between Israel and Hamas and demonstrators set fire to the Stars and Stripes in protest at US support for the Jewish state.
The Republican Presidential candidate conceded that punishing people for burning the flag was considered unconstitutional, but he said, “Make it not unconstitutional.” Trump made the remarks just a day after anti-Israel protestors burned the flag in Washington, DC, to protest the presence of Israeli Prime Minister Benjamin Netanyahu, who visited the US to deliver a speech in Congress.
The debate over the constitutionality of burning Old Glory has raged on for many years. Legal experts, however, say the matter is settled, and Americans are free to set the flag alight, provided it is their own property.
In Texas v Johnson in 1989, the US Supreme Court ruled on the subject and said the First Amendment protects flag-burning because it falls within “expressive conduct.” The case was initiated when Dallas resident Gregory Johnson burned the flag in protest at then-President Ronald Reagan’s policies. Police arrested Johnson and charged under state legislation that made flag desecration a felony.
The case was eventually heard in the Supreme Court, which ruled 5-4 that the Texas legislation, rather than the flag desecration, was unconstitutional. The Court explained its decision and said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” With that ruling, flag-burning laws in 48 states were rendered unenforceable.
The US Supreme Court has ruled on numerous free speech cases, though a definitive definition remains elusive. The Justices have determined, however, that using offensive words and refusing to salute the Stars and Stripes were protected.
Several lawmakers and campaigners openly disagreed with the Supreme Court’s decision, and in 1989, the Flag Protection Act passed through Congress. This made it a criminal offense to mutilate, deface, defile, step on, or burn the American flag. Free speech advocates protected against the legislation by setting fire to the US banner, and in United States v Eichman, the case came before the Supreme Court again.
Once again, the Supreme Court held that a legal prohibition on flag-burning was unconstitutional and overturned the Flag Protection Act. Interestingly, the Court determined that “the mere destruction or disfigurement of a symbol’s physical manifestation does not diminish or otherwise affect the symbol itself.” In other words, the Court ruled that burning the American flag does not damage or impede the values that it represents.
Supreme Court Justices noted in Eichman, as they did in Johnson, that one cannot ban flag burning without restricting expression and, as such, cannot ban flag burning without infringing upon First Amendment rights.
