President-elect says people who burn the US flag should get ‘loss of citizenship or a year in jail’, but Obama spokesman says act is protected by constitution

This article is more than 3 years old

This article is more than 3 years old

The White House has repudiated Donald Trump’s assertion that protesters who burn the American flag should potentially be imprisoned or stripped of their citizenship.

The president-elect tweeted early on Tuesday: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”

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It was unclear what had triggered the comment, but it appeared to coincide with a report on the Fox News channel about students at a college in Massachusetts allegedly burning a flag in protest at his shock election win. Trump is known to be an avid consumer of cable TV news.

Josh Earnest, the White House spokesman, told reporters that freedom of expression was enshrined in the US constitution. “The need to protect those rights is in place to protect speech and expression not just when we agree with it but also when we find it offensive,” he said.

“Many Americans – the vast majority of Americans, myself included – find the burning of the flag offensive but we have a responsibility as a country to carefully protect our rights that are enshrined in the constitution.”

Earnest added: “This is a bipartisan sentiment. I know that there are conservatives on the supreme court that share the view that I’ve just articulated. I know that there are Democrats and Republicans in the United States Congress that share the view I’ve just articulated, and it certainly is consistent with the kind of governing agenda that President Obama has pursued here in the White House during his eight years in the Oval Office.”

Asked if the president, who has spoken to Trump by phone more than once since the election, was concerned about such views, Earnest replied: “This is not the first thing that the president-elect has said or tweeted that President Obama disagrees with.”

Freedom of speech extended to Twitter, he said, “so there’s a little irony in this situation”.

The supreme court ruled in 1989 that flag-burning is “expressive conduct” protected by the first amendment. Among those voting with the court majority in the Texas v Johnson case was the late justice Antonin Scalia, for whom Trump has regularly expressed admiration.

Asked about Trump’s comments, Mitch McConnell, the Republican Senate majority leader, said he supported the supreme court’s decision.



“The supreme court has held that that activity is a protected first amendment right, a form of unpleasant speech,” McConnell told reporters on Capitol Hill.



“In this country we have a long tradition of respecting unpleasant speech.”

Joe Manchin, a Democratic senator from West Virginia, also agreed that flag-burning was a constitutional right.

But he added: “If you do it in front of me, I’m going to beat the hell out of you.”

Trump’s proposal was also condemned as unconstitutional on another count. In a 1967 case, Afroyim v Rusk, the supreme court ruled that the constitution does not allow the government to take away an individual’s citizenship against their will.

Shane Kadidal, a senior managing attorney at the Center for Constitutional Rights, said: “There are two baseline constitutional tenets that he manages to screw up in 140 characters.”



Facebook Twitter Pinterest Mitch McConnell said he agreed with the supreme court’s decision on flag-burning. Photograph: Molly Riley/AP

Scalia was among the judges in the case that established that flag burning is “constitutionally protected speech”, Kadidal added, while “it’s even more established, by half a century, that one can only lose one’s citizenship by voluntary means”.

Carl Tobias, a law professor at the University of Richmond, said: “The supreme court has spoken in the flag-burning case. The constitutionality of that is pretty settled. The law is clear and has been for some time.

“Burning the flag is widely seen as a social taboo but not a legal one. It’s a freedom we’ve had for 200 years and it had to trump the other interests, no matter how vile we might think that activity is. Justice Scalia thought the constitution had to be paramount.”

Trump has previously been accused of showing little respect for the US constitution. Khizr Khan, a Muslim whose son was killed while serving in Iraq, memorably questioned at the Democratic national convention whether the celebrity businessman had even read it.

On Tuesday, there was also criticism from Trump’s own party. David Frum, a former speechwriter for President George W Bush and now a senior editor of the Atlantic, tweeted: “If flag-burning merits loss of citizenship, what should be the penalty for a Nazi salute by a Trump supporter?”

He also posted: “Donald Trump’s political career is one protracted flag burning. The symbols of the Republic properly belong to his opponents.”

Congressman Sean Duffy, a Republican from Wisconsin, told CNN: “We want to protect those people who want to protest … I disagree with Mr Trump on that.”

Trump would not be the first president to attempt a ban on flag burning. The Flag Protection Act of 1989 was supported by George HW Bush before it was ruled unconstitutional, and the Flag Protection Act of 2005, another failed attempt to criminalise flag burning, was co-sponsored by then senator Hillary Clinton.

The latter effort was also supported by Harry Reid, now the outgoing Senate Democratic leader. Reid said on Tuesday his vote was not equivalent to what Trump was suggesting.



“We know Trump tweeted that he feels that someone who burns a flag should lose their citizenship,” the Nevada Democrat told reporters in his weekly press conference on Capitol Hill. “I don’t agree with him; he’s gone way too far.”



Arizona senator John McCain said he also disapproved of burning the flag but declined to address Trump’s specific claim that people who do so should lose their citizenship.



“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 told CNN.

“There’s other ways for people to express their views rather than to burn a flag that so many fought and died for.”

The 2008 Republican presidential nominee grew testy, however, when pressed further on Trump’s views.



“I’m not commenting on Mr Trump’s comments,” McCain said. “I have not and will not.”

“That may be your priority, to comment every day on any comment that Mr Trump has,” he added of reporters. “My priority is to try to defend the nation and the men and women who are serving it.”

Facebook Twitter Pinterest Tom Price visits Trump Tower. Photograph: Carolyn Kaster/AP

Not for the first time, the president-elect’s Twitter habits deflected attention from transition business, although that too is being played out in an unusually public manner. He has now held 68 meetings with potential administration members, transition spokesperson Sean Spicer said.

On Tuesday, Trump named representative Tom Price as health secretary and, according to reports, planned to name Elaine Chao as transportation secretary.

Chao, who was labour secretary under Bush, is married to McConnell. She was also a member of Trump’s Asian Pacific American Advisory Council during his presidential campaign.



Price, an orthopaedic surgeon from Georgia, has spent more than a decade in Congress and influenced the healthcare plan that the House speaker, Paul Ryan, is pushing as an alternative to Barack Obama’s signature Affordable Care Act. Price is also a fierce opponent of abortion rights and described the legalisation of gay marriage as “a sad day for marriage”.

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For Democrats it was yet another ominously rightwing appointment. The incoming Senate minority leader, Chuck Schumer, said Price “has proven to be far out of the mainstream of what Americans want when it comes to Medicare, the Affordable Care Act, and Planned Parenthood”.

Schumer said those programmes have helped millions of Americans, including “seniors, families, people with disabilities and women, have access to quality, affordable healthcare. Nominating Congressman Price to be the HHS [health and human services] secretary is akin to asking the fox to guard the hen house.”

The House minority leader, Nancy Pelosi, said: “If Tom Price has his way with the Affordable Care Act, millions of families who have finally found affordable coverage for themselves and their children will be pushed back into the cold. Doctors would be hounded out of lifesaving research, and women would be denied their right to contraception and comprehensive healthcare.”

Trump was due to have dinner on Tuesday night with Mitt Romney, the Republican nominee for president in 2012 and a former foe who is now in contention for the position of secretary of state. The president-elect will begin a “thank you tour” on Thursday night with a rally in Cincinnati, Ohio.