President-elect Donald Trump, known for his uncanny ability to raise eyebrows with 140 characters or less, sent out this particularly scrutinized tweet November 29: “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or a year in jail!”
While one Virginia man voices the same grievance, another local would like to remind The Donald about U.S. Supreme Court rulings that declared otherwise.
In two cases—one in 1989 and another in 1990—the highest court in the nation ruled that the prosecution of people who burn the flag violates the First Amendment right to free speech and is, therefore, unconstitutional, notes Joshua Wheeler, the director of Charlottesville’s Thomas Jefferson Center for the Protection of Free Expression.
“It’s a little puzzling as to why politicians of both parties try to bring this up given that it’s not such a common occurrence,” Wheeler says. But, as a result of the tweet, he adds, a number of people have burned flags outside of Trump’s New York City abode in protest.
Wheeler compares the decades-old Supreme Court decisions with the recent arrests of 13 Black Lives Matter protesters who stopped traffic on Richmond’s I-95 and were convicted on the same day Trump sent his tweet.
“Unlike flag burners, the conviction of the Richmond protesters had nothing to do with the message they were expressing,” he wrote in a statement. “Their crime was impeding traffic. Had a similar highway-blocking protest involved the Ku Klux Klan, Planned Parenthood or the NRA, all would have been equally guilty of impeding traffic—a crime of pure conduct.”
And prosecuting someone for burning a flag can get sticky, he says, asking what exactly an American flag is. “Does it include a flag patch sewn onto someone’s jacket? How about a realistic painting of the flag? Or a button displaying only the U.S. flag? If you can’t burn it, can you also not step on it? Or write on it? Such laws are unwieldy, to say the least.”
The First Amendment “doesn’t mean citizens can say whatever they want whenever they want,” Wheeler says, but it is a limit on the government’s ability to restrict free speech. And while he doesn’t think flag burning is the best way to express oneself, he says he supports the right to do it.
“I am personally offended by it,” he says. “I think it is a deliberately provocative way to express something that could be done in a more respectful way. On the other hand, I believe more strongly in the right of free speech.”
But Jonathan Guy, a Chesterfield man who comes from a long line of family members who served in the military, feels otherwise.
“I think it’s ridiculous,” he says. “People stepping on the flag and burning them is a disgrace. …I’m looking at two folded flags in my window. One was my granddad’s and one was my dad’s. I cherish those flags.”
And he’s proposed a solution to the problem.
For offenders who weren’t born in America: “Send them back to where they came from.” But for natural-born citizens: “That’s a really tough question.”