The president elect has flag burning on his mind — or at least he did on Tuesday, when Donald Trump tweeted that nobody should be allowed to burn the American flag, and consequences might include loss of citizenship or a year in jail.
Donald Downs, Professor of political science, law and journalism at UW Madison, says the Supreme Court ruled flag burning was free speech more than 25 years ago.
“The 1989 decision was 5-4, and the majority concluded that you had a constitutional right to burn a flag as long as you were trying to convey a message,” Downs said. “Justice Scalia actually voted in favor of the right to do so.”
Downs says Trump is within his rights to criticize flag burners. “That’s part of free speech, and any politician is free to say that. But to say that it should be illegal and someone should be punished, that becomes a problem for the 1st amendment if you take that kind of position.”
It’s not known what inspired Trump’s seemingly random flag burning tweet or whether he will call on Congress to attempt a new law banning it. Wisconsin Congressman Sean Duffy, who has been named to Trump’s transition team, took issue with the president elect.
“I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right,” Duffy told CNN.