Normally, I try to keep this blog out of the political ditches, so to speak, but I believe it’s necessary to address something that president-elect Trump recently said, and, more importantly, to correct any misimpression it might leave people with.
On Tuesday, November 29, 2016, at 6:33am, Trump tweeted that: “Nobody should be allowed to burn the flag—if they do, there must be consequences—perhaps loss of citizenship or [a] year in jail!”
I’m not an immigration lawyer, so I’ll leave the loss of citizenship bit for an actual immigration lawyer, but suffice it to say, a U.S. citizen cannot be deprived of citizenship against their will (the Supreme Court has previously barred this under the prohibition against “cruel and unusual punishment.”) But I can address, and hopefully shed some light on, his idea to make flag burning a criminal offense punishable by a year in jail.
Problem is, Texas tried to do this—twice, apparently—and failed miserably each time. The Texas Penal Code (our law) used to have a statute on the books that prohibited the “desecration of venerated objects.” A protester was charged with violating the statute by burning the flag of the United States, and the case went to the Supreme Court of the United States in 1989, styled Texas v. Johnson (491 U.S. 397). The Supreme Court held the statute unconstitutional as applied to the protested. Strike one.
Undeterred, Texas again passed a statute prohibiting “destruction of the flag,” making it a Class A misdemeanor offense (punishable by up to a year in jail…) for a person to “intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas.” This time, the case found its way to the highest criminal court in Texas, the Texas Court of Criminal Appeals in 2015. Because the text of the flag burning statute prohibited a substantial amount of protected First Amendment speech, the Texas Court of Criminal Appeals held the statute to be “facially invalid because it is unconstitutionally overbroad in violation of the First Amendment.” Strike two.
So, the obvious problem with “Nobody should be allowed to burn the flag—if they do, there must be consequences—perhaps loss of citizenship or [a] year in jail!” is that such a law would be unconstitutional and hence unlawful under clearly established (i.e. twenty year old case law on the jail part, sixty or so year case law on the expatriation part) prior holdings.