poster="http://v.politico.com/images/1155968404/201611/1048/1155968404_5228460420001_5228394103001-vs.jpg?pubId=1155968404" true Trump calls for jailing, revoking citizenship of flag-burners Laws prohibiting the burning or desecration of the American flag have been struck down by the Supreme Court. 
 
 Burning an American flag should be a crime, President-elect Donald Trump wrote Tuesday morning on Twitter, perhaps punishable by a forfeiture of U.S. citizenship or a year in jail. 
 
 “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 wrote in a post to his social media account. 
 
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 Laws prohibiting the burning or desecration of the flag have been struck down by the Supreme Court, most recently in 1990, because they were found to have violated the First Amendment of the Constitution, which protects freedom of speech. A 1958 Supreme Court decision rejected the practice of stripping U.S. citizenship as a form of criminal punishment, on the grounds that it violates Eighth Amendment protections against "cruel and unusual punishment." 
 
 In a 5-4 decision in 1989, the Supreme Court upheld the right of protesters to burn the flag, with the late Justice Antonin Scalia siding with the protesters. He later said he based his ruling on a “textual” reading of the Constitution. 
 
 “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 in Philadelphia. “But I am not king.” 
 
 A 2005 bill that would have reinstituted a ban on flag burning was co-sponsored by Hillary Clinton, then a senator from New York. That legislation was unsuccessful. 
 
 A constitutional amendment that would allow the government to ban flag desecration has been proposed multiple times but has never passed. It was last voted down in 2006 in the Senate, where current Majority Leader Mitch McConnell and former Democratic presidential candidate Lincoln Chafee, then a Republican, were among three GOP lawmakers to vote against it. Then-Sen. Clinton also voted against it. 
 
 McConnell disagreed sharply with Trump's tweet when asked about it during a press availability on Tuesday. 
 
 "The Supreme Court has held that 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," McConnell said. 
 
 Some protesters upset with Trump's Election Day victory have set fire to American flags at demonstrations throughout the country. At Hampshire College, a small school in western Massachusetts, administrators removed the American flag from campus after protesters there burned one, according to WWLP-TV. That decision prompted a protest of more than 1,000 people, many of them veterans, upset with the school's decision. 
 
 Jason Miller, Trump's senior communications adviser, struggled to defend the president-elect's post in an interview on CNN's "New Day" just minutes after the tweet appeared online. He refused to concede that flag burning is constitutionally protected speech, insisting that it should be illegal even as he tried in vain to pivot to the announcement of Rep. Tom Price (R-Ga.) as Trump's pick to be secretary of health and human services. 
 
 "Chris, flag burning is completely ridiculous. And I think you know that and I think the vast majority of Americans would agree," Miller told CNN anchor Chris Cuomo. 
 
 "But legal," Cuomo interjected. 
 
 "But Chris, it's completely ridiculous. And I don't think there's a big universe of people out there who support flag burning. It's terrible and it’s despicable," Miller replied. 
 
 The two continued in circles for several more rounds of back-and-forth as Cuomo tried to pin down Trump’s spokesman on the issue of flag-burning before Miller finally succeeded in turning the interview to Price’s selection, telling his interviewer that “flag burning should be illegal. End of story. Let’s get in and talk about how we’re going to repeal and replace Obamacare and these fantastic picks that the president-elect announced this morning.” 
 
 House Majority Leader Kevin McCarthy (R-Calif.) readily acknowledged during an interview on MSNBC’s “Morning Joe” that flag burning is constitutionally protected free speech, telling panelist Willie Geist that “we’ll protect our First Amendment” even though he does not agree with the practice. 
 
 Rep. Sean Duffy (R-Wis.), asked about Trump’s tweet in a separate “New Day” interview, said, “I love my flag, and I love what it stands for, and I hate those who want to go out and burn it.” Still, Duffy added: “The court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag even though so many of us who love our country and love our flag object to it.” 
 
 Rep. Justin Amash (R-Mich.), a libertarian-leaning member of the conservative House Freedom Caucus, also took issue with Trump’s flag-desecration stance, writing on his own Twitter account that “Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment.” 
 
 Trump received a modicum of support from Sen. John McCain (R-Ariz.), the Armed Services Committee chairman with whom he clashed throughout his presidential run. As he made his way through a Capitol Hill office building, McCain told CNN that “I do not approve of burning the flag. I think there should be some punishment, but right now, the Supreme Court decision is that people are free to express themselves that way.” 
 
 McCain declined to offer any further comment on Trump’s social media post, telling a CNN reporter that the president-elect’s bombast is a distraction from the work he faces on Capitol Hill. ||||| (CNN) President-elect Donald Trump proposed on Tuesday a penalty -- including possible jail time or loss of citizenship -- for burning the American flag, in spite of two US Supreme Court rulings that protect the act under the First Amendment as a form of free speech. 
 
 "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. 
 
 Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail! 
 
 The Supreme Court has twice affirmed the right to desecrate the American flag as a form of free speech -- a historically contentious issue -- in cases before the high court in 1989 and 1990. 
 
 The following year, in "United states v. Eichman, " the top court again affirmed the right to burn the flag when it ruled 5-4 that the Flag Protection Act of 1989 -- passed by Congress in response to the Johnson decision -- was unconstitutional. 
 
 It's not immediately clear what prompted Trump's tweet Tuesday morning, though the national discussion of respect for the flag has been restarted in part following a flag burning November 10 on the campus of Hampshire College in Amherst, Massachusetts, as part of a post-election protest. The university then decided to stop flying the American flag at the campus, which also infuriated some members of the community. 
 
 Steve Vladeck, CNN legal analyst and professor at the University of Texas Law School, said Trump's suggestion that citizens possibly be expatriated as a penalty is also a non-starter. 
 
 "In addition to ignoring the Supreme Court's clear teaching that flag burning is constitutionally protected speech, Mr. Trump's tweet also casually suggests that citizens should lose their citizenship as a 'penalty' for such acts," Vladeck said. "Even if flag burning wasn't protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign." 
 
 When asked about the Supreme Court rulings on CNN's "New Day," Trump transition spokesman Jason Miller repeatedly dismissed questions about the constitutional protections of flag burning. 
 
 "Flag burning should be illegal," Miller told CNN's Chris Cuomo. "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." 
 
 But Trump's opposition to the protection of flag burning puts him at odds with conservative leaders like Senate Majority Leader Mitch McConnell and deceased Supreme Court Justice Antonin Scalia, whom Trump has praised as a "brilliant Supreme Court Justice, one of the best of all time." 
 
 Trump himself has tweeted about the importance of free speech, including a message he sent in 2013, quoting George Washington. 
 
 "'If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.' - George Washington," 
 
 "If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter." - George Washington — Donald J. Trump (@realDonaldTrump) February 15, 2013 
 
 In a 2012 interview with CNN , Justice Scalia defended the right to burn the flag, explaining the difference in his personal and judicial opinions on the subject. 
 
 "If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government," Scalia said. 
 
 "I mean that was the main kind of speech that tyrants would seek to suppress," he added. "Burning the flag is a form of expression -- speech doesn't just mean written words or oral words -- burning a flag is a symbol that expresses an idea. 'I hate the government, the government is unjust,' or whatever." 
 
 And McConnell wrote a 2006 op-ed for the Central Kentucky News titled "Flag stands for freedom, even to desecrate," in which he defended the right to burn the flag. 
 
 "No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that," he wrote. "Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might." 
 
 Still, banning flag-burning has drawn mainstream support before. The Flag Protection Act of 1989 was supported at the time by President George H.W. Bush, before it was ruled unconstitutional, and the Flag Protection Act of 2005, another failed attempt to criminalize flag burning, was co-sponsored by then-Sen. Hillary Clinton. ||||| Here's what you should know about President-elect Donald Trump's Nov. 29 tweet calling for a ban on burning the U.S. flag. (Sarah Parnass/The Washington Post) 
 
 The president-elect woke up Tuesday morning with a clear agenda before him. Poised to announce his pick of Rep. Tom Price to lead the Department of Health and Human Services and with a day of meetings slated — including one with onetime foe Mitt Romney — Donald Trump hopped on Twitter to talk about where his attention was focused. 
 
 Disparaging CNN and — more unexpectedly — reigniting the once-virulent debate over flag-burning. 
 
 Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail! — Donald J. Trump (@realDonaldTrump) November 29, 2016 
 
 Where this came from is anybody’s guess. (Update: Apparently it overlapped with a Fox News segment.) There’s an operating theory among some that Trump throws out tweets like this to distract attention from something else, as though 140-character messages demand our total (100 percent) brain capacity. On MSNBC’s “Morning Joe,” host Joe Scarborough speculated that maybe Trump was tossing a bit of red meat to the angry social media lions before announcing that he would pick Romney as secretary of state. 
 
 The suggestions of this tweet and the context in which it was issued, though, make it far from just a simple distraction. 
 
 Flag-burning is not an issue that has occupied a central position in the American political consciousness of late. It’s absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of “free speech” and “the First Amendment” against the patriotism of people who find flag-burning unacceptable. 
 
 Some quick history is in order. Fights over how the flag is depicted have been fought at the Supreme Court for more than a century, including the 1989 decision Texas v. Johnson which established that burning the flag was a constitutionally protected act. 
 
 One of the justices who supported that 5-4 decision was Antonin Scalia, the jurist whose death earlier this year created the vacancy that it seems Trump will get to fill — with someone, he has said, he hopes will be “in the mold” of Scalia. Scalia also voted to protect flag-burning when Congress passed a national law hoping to avoid the problems of Texas v. Johnson — even though he found the practice to be repugnant. 
 
 “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said last year, adding an important disclaimer: “But I am not king.” In an interview with CNN, he explained the distinction simply: Flag-burning is a form of expression, and therefore is protected by the First Amendment. 
 
 A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful) 
 
 Congress has tried to work around the decision. Shortly afterward, it passed a law banning flag-burning, which was again thrown out (with Scalia’s agreement). A decade ago, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with now-Senate Majority Leader Mitch McConnell (R-Ky.) voting in opposition. 
 
 Fun fact: Statement from Mitch McConnell during 2006 flag desecration amendment debate: pic.twitter.com/ceVk0tvnWC — Carrie Dann (@CarrieNBCNews) November 29, 2016 
 
 “If there is a bedrock principle underlying the First Amendment,” Justice William Brennan wrote in response to the decision to strike down the 1989 federal law, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 
 
 Trump doesn’t seem to adhere to this idea. He has railed against the oppositional media repeatedly, suggesting at one point that he might “open up” libel laws to make it easier to sue the media. He disparaged protests earlier this month as being incited by the press and being illegitimate because the protesters were paid (a claim for which there’s no evidence). When protesters in Chicago disrupted one of his rallies, he suggested that they should be thrown in jail. His proposals to address the threat of terrorism often seem to tiptoe beyond the free-expression-of-religion boundaries established in the Bill of Rights. 
 
 When Trump finds free expression offensive or disagreeable, he seeks to curtail it and, in some cases, impose harsh penalties. The suggestion that those who burn flags should lose their citizenship is remarkable in part because it’s such a drastic response — one that would itself rescind any number of legal protections to which the culprit would otherwise be entitled. Incidentally, this suggested punishment is barred as a result of a 1958 decision from the Supreme Court, as Louis Nelson notes at Politico. 
 
 We’ve often seen Trump dash off a Twitter opinion that goes no further. There’s a fair argument to be made that, in the absence of any broader debate or proposed policy, this tweet about the flag should be treated as a curiosity. But it comes on the heels of Trump tweeting about how the results of the election should be questioned because of fraud (something that, again, lacks evidence). It’s a pattern of pushing back against fundamental pillars of our democracy: elections, free speech, Supreme Court decisions. He has every right to do so, of course. If nothing else, that’s important context. And it reinforces a desire to treat those who oppose him or his values harshly, even when he lacks the power to do so. 
 
 Why now? Who knows. Given the attention he has paid of late to casting his opponents in a negative light (like those claims about “voter fraud” that were the subject of his tweets Monday), perhaps he wants to force them to defend an unpopular position. Perhaps he even hopes that protesters will appear outside Trump Tower and burn flags. That certainly wouldn’t hurt his efforts to rally support from otherwise indifferent Americans. 
 
 Anyway. Time for Trump to tick off the next items on his to-do list. Something about putting together a government? With the important stuff done, might as well move on to that. 
 
 More from The Fix: 
 
 Why we can’t — and shouldn’t — ignore Donald Trump’s tweets 
 
 A running list of how Donald Trump’s new position may be helping his business interests 
 
 Steve Bannon once suggested only property owners should vote. What would that look like?
– Donald Trump believes in free speech and that flag-burning should be illegal. In what the Washington Post is calling "Donald Trump v. the First Amendment, part five," the president-elect decried flag-burning in a tweet on Tuesday, noting those guilty of the practice should perhaps spend a year in jail or even lose their US citizenship. "Nobody should be allowed to burn the American flag—if they do, there must be consequences," Trump said. Though flag-burning remains controversial, the Supreme Court declared the practice to be a protected form of free speech in 1989 and 1990, reports CNN, which Trump bashed Monday night. Even conservative Supreme Court Justice Antonin Scalia—whom Trump has called "one of the best of all time"—believed flag burning should be protected based on a "textual" reading of the First Amendment. House Majority Leader Kevin McCarthy and Rep. Sean Duffy expressed similar sentiments Tuesday. A Trump transition rep notes "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." Though flag-burning is legal, Trump's desired punishment is not. A 1958 Supreme Court decision banned the stripping of US citizenship as a criminal penalty, reports Politico.