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President Donald Trump revived calls this week for people who burn American flags to go to jail after demonstrators in California were seen torching them and waving Mexican flags in protest of the administration carrying out immigration enforcement operations in the state.
“I happen to think if you burn an American flag, because they were burning a lot of flags in Los Angeles, I think you go to jail for one year, just automatic,” Trump told the New York Post.
Flag burning in the United States is neither unlawful nor unconstitutional. Offenders can only be punished under the law for flag burning if they are committing another crime at the same time, such as violating fire safety laws or burning flags that they stole.
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Trump also said this week during a speech in Fort Bragg, North Carolina, that he was working with Congress to pass a law that would outlaw burning American flags, noting Sen. Josh Hawley, R-Mo., was on board.
“We’ll see if we can get that done,” Trump said.
Hawley responded by proposing a bill on Thursday that would create stiffer penalties for rioters who burned American flags. The proposed legislation included the stipulation that the flag burning had to occur while the offender was also committing riot-related crimes. Hawley called the American flag a “symbol of our nation.”
In a landmark decision in 1989, the Supreme Court concluded that states could not pass laws that criminalize American flag burning, saying it would open the door to prohibiting the burning of state flags and copies of the presidential seal or Constitution.
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“To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. … In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do,” the majority opinion read.
Chief Justice William Renquist dissented, writing that the flag was not “simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”
“Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have,” Renquist wrote.
Congress responded to the decision by passing a law called the Flag Protection Act that made knowingly desecrating the American flag a federal crime, but the Supreme Court struck down that law, too.
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