President-elect Donald Trump once more revealed his ignorance of the law when he said last week that those who burn an American flag should be imprisoned and stripped of their citizenship. Undoubtedly there are those who agree with Trump that burning the flag is a vile and unpatriotic act that deserves punishment, but the law is clear that this is speech protected by the First Amendment. Moreover, an American citizen never can be stripped of citizenship unless he or she chooses to renounce it.
In cases in 1989 and 1990, the Supreme Court unequivocally held that there is a First Amendment right to burn a flag as a form of protest. Texas v. Johnson, in 1989, involved the conviction of an individual who burned a flag at the 1984 Republican National Convention in Dallas and uttered the words, “Red, white and blue, we spit on you.” He was convicted and sentenced to a year in prison under a Texas law prohibiting any person to “deface, damage or otherwise physically mistreat” a flag in a way he knows “will seriously offend one or more persons likely to observe or discover his action.”
The Supreme Court declared the Texas law unconstitutional. The court explained that the law’s purpose was to keep the flag from being used to communicate protest or dissent. The court said that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable.”
Texas v. Johnson generated enormous controversy and proposals to amend the Constitution to prohibit flag burning. In an effort to avoid such an amendment, Congress adopted the Flag Protection Act of 1989, making it a crime for any person to knowingly mutilate, deface, defile, burn or trample the flag. Unlike the Texas law, punishment was not limited to situations where the conduct would offend another.
In United States v. Eichman, in 1990, the Supreme Court declared this law unconstitutional. The court said the statute had the “same fundamental flaw” as the Texas law it invalidated earlier. The law’s primary purpose was to keep the flag from being used to communicate protest or dissent.
At no time in the last quarter-century has any justice indicated a desire to reconsider these rulings. It is precisely the strong emotional attachment to the flag that makes its desecration a uniquely powerful form of expression. Laws that prohibit flag burning or defacement are inherently seeking to stop expression of dissent. The government is trying to preserve the flag as a symbol that communicates patriotism, but not of protest.
People can burn a flag, but no one can destroy the flag or its role as a unique symbol in American political life.
I realize Donald Trump is not a constitutional scholar and might be excused for not knowing the law in this area. But his desire to punish dissenting speech is troubling, as is his failure to check the law before issuing declarations. Ironically, Trump’s condemnation of flag burning is likely to make it much more common. There have been relatively few incidents of flag burning over the years. But now, knowing it draws Trump’s ire, more might want to do this as a form of protest.
Even more troubling was Trump’s statement that those who burn a flag should be stripped of their citizenship. That is obviously an extreme punishment and it is frightening that Trump would want to apply it for expressing dissent through burning a flag.
It also is clearly unconstitutional to do so. In Afroyim v. Rusk, in 1967, the Supreme Court held that the government never can involuntarily deprive a person of citizenship, no matter how serious the crime.
The court powerfully declared: “In our country the people are sovereign and the government cannot sever its relationship to the people by taking away their citizenship.” Otherwise, Congress could take away a person’s citizenship for any crime it deemed unpatriotic or heinous. All of our citizenship would be at the pleasure of Congress.
I worry that we will become inured to statements from Donald Trump like his declaration about criminally punishing and stripping citizenship of those who burn the flag. But he is about to be the president of the United States and we should expect more knowledge of the law and greater respect for the law than are reflected in statements like this.
Erwin Chemerinsky is dean of the UC Irvine School of Law.