How the Law Protects Flag Burning in the United States

“Nobody should be allowed to burn the American flag,” Trump posted.

ByABC News
November 30, 2016, 11:28 AM

— -- President-elect Donald Trump wrote on Tuesday that anyone caught burning the American flag should face consequences -- including having their citizenship yanked or facing a year in jail, according to his tweet.

The act is considered offensive by many, but flag burning is legal in the U.S. under Supreme Court rulings that it is constitutionally protected speech under the First Amendment.

It was not clear what sparked Trump's tweet, but it comes after a college in Massachusetts took down an American flag on campus during protests of Trump’s victory after a previous flag burning incident. Many have protested the decision by Hampshire College in Amherst, Mass.

Here’s a look at the current law and what Trump’s comments could mean:

What Is the Law?

In 1989, the high court ruled that flag burning was a form of "symbolic speech" under the Constitution. The 5-4 decision came in a case involving Gregory Joey Johnson who, outside the 1984 Republican National Convention, burned the flag to protest the policies of then-President Ronald Reagan.

Johnson faced a fine and a year in prison for violating a Texas law that made burning the flag a felony. The case made its way to the Supreme Court and although divided, the justices sided with Johnson, reversing the lower court ruling.

It is unclear whether any of Trump’s potential Supreme Court nominees would side with him on outlawing flag burning.

Former Justice Antonin Scalia sided with the majority in the 1989 ruling that flag burning is protected as “symbolic speech.” Trump has praised Scalia and said that he would seek to appoint a similar justice to the court.

Proposed Laws

In 1990, Congress passed the Flag Protection Act to outlaw knowingly burning or otherwise defacing the American flag. The Supreme Court shot down that law as well, holding that it violated the First Amendment.

There have been other attempts by Congress to legislate flag burning, but none have passed. The House went as far as approving an amendment to ban "flag desecration," but it has never made it through the full Senate.

Congress shot down the most recent proposed constitutional amendment to ban flag burning in 2006. The measure, co-sponsored by Hillary Clinton, would have outlawed flag desecration and made it punishable by a fine.


Trump transition team spokesperson Jason Miller defended the president-elect’s tweet.

"Flag burning should be illegal," Miller said on CNN. "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."

Some of Trump’s fellow Republicans broke with his stance on flag burning. House Majority Leader Kevin McCarthy, a Republican, stated that while he does not "support or believe in the idea of people burning the American flag, I support the First Amendment."

The American Civil Liberties Union slammed Trump’s tweet as “fundamentally un-American."

“The idea that the government could not only censor someone for engaging in political speech, but actually revoke a protester’s U.S. citizenship as a punishment for political speech is unconstitutional and fundamentally un-American,” ACLU senior staff attorney Lee Rowland said.

White House Press Secretary Josh Earnest criticized Trump’s suggestion that flag burners face jail time or lose citizenship, saying that “we have a responsibility as a country” to defend the First Amendment.

Senate Majority Leader Mitch McConnell also broke with Trump on his call to punish flag burners. In reference to burning the flag, McConnell said “that activity is a protected First Amendment right. A form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter.”

ABC News’ Brian Hartman, Michael Edison Hayden and Supreme Court Contributor Kate Shaw contributed to this report.