Trump suggests loss of citizenship or jail for those who burn U.S. flags

It came across Donald Trump's Twitter feed early Tuesday morning, seemingly out of the blue: a demand that flag burners should face consequences, including jail and maybe even the loss of their citizenship.

The Republican president-elect's tweet rattled civil liberties and legal experts, who were quick to note that the Supreme Court ruled long ago that flag desecration is considered free speech and that it is unconstitutional to punish someone by stripping their citizenship.

But whatever Trump had in mind, the president-elect's outburst underscored a key aspect of his three-week-old transition: He is continuing to cater to his base – the largely white, working-class voters that propelled him to the White House – with relatively few overtures to the majority of voters who cast ballots against him.

"Trump won rural America, where support of the flag is a big issue," said Scott Reed, a longtime Republican strategist who served as Bob Dole's campaign manager in 1996. "A lot of those homes that had Trump signs out front were also flying American flags. This is clearly part of his base politics."

The same dynamic will play out Thursday when Trump kicks off a "Thank You Tour" with a campaign-style rally of supporters in Ohio. Aides have suggested the tour will include other states where the Republican prevailed, including some traditionally Democratic ones where he won in part by driving up the rural white vote.

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Since defeating Hillary Clinton in electoral college votes on Nov. 8, Trump has made some efforts to reach out beyond his base with Cabinet picks that have pleased the GOP establishment. Those include Elaine Chao, a former labor secretary and the wife of Senate Majority Leader Mitch McConnell, R-Ky., whom Trump announced as his transportation secretary on Tuesday.


But there has been little in Trump's actions so far to suggest that he is courting the Democrats who voted against him – or working to shore up an approval ranking still in negative territory. He has instead spent recent days making unfounded claims about illegal votes costing him the popular vote against Clinton and attacking CNN and other media for how they cover him – the kind of rhetoric that fired up his supporters during a bruising campaign season in which he also rallied on illegal immigration and lost manufacturing jobs.

Trump did not say Tuesday what inspired his tweet about flag-burning, but it came just days after a college in western Massachusetts decided to stop flying the U.S. flag in response to students there burning one in protest of Trump's election. Hundreds of veterans and others gathered Sunday to protest the decision by Hampshire College in Amherst, Mass.

A segment on the controversy aired Tuesday on Fox News's "Fox & Friends" shortly before Trump's 6:55 a.m. tweet went out.

"Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!" Trump wrote in a tweet that by late afternoon Tuesday had been "liked" by more than 145,000 people. In a Washington where carefully vetted statements from the White House have long been the norm, this was clearly a different approach.

"This is going to be one of the new dynamics of this incoming administration," said Michael Steele, the former chairman of the Republican National Committee. "It speaks to how Trump is able to generate a national conversation in 140 characters. . . . The polite society part of Washington is going to be scratching their heads and sometimes flat on their backs."

Tuesday was also not the first time Trump has suggested a narrower view of the First Amendment and the rights it affords. During the campaign, he also blacklisted reporters from The Washington Post and other news outlets who fell out of his favor and suggested that he would "open up" libel laws to make it easier to sue the news media.

In 1989, the Supreme Court struck down on First Amendment grounds a Texas statute banning flag-burning. Congress responded swiftly by passing the Flag Protection Act of 1989 – a law that was invalidated a year later by another Supreme Court ruling.

Among the justices who supported the right burn a flag in both cases was the late Antonin Scalia, whom Trump has said is "in the mold" of those he would like to appoint to the court.

"If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," Scalia said an event last year. But, he said: "I am not king."

Nearly a half-century ago, in 1967, the court also ruled that citizens cannot be deprived of their citizenship involuntarily.

Aware of those rulings, Republican leaders in Washington were loath to offer support for Trump's view. McConnell said the Supreme Court had spoken on the subject of flag-burning, adding that the Constitution protects even "unpleasant speech."

During a television appearance shortly after Trump's tweet, House Majority Leader Kevin McCarthy, R-Calif., suggested that Congress is unlikely to revisit the issue of a constitutional amendment to overturn the court's rulings.

"We have a First Amendment right, but where I come from, you honor the flag," McCarthy said on MSNBC's "Morning Joe." "If someone wanted to show their First Amendment right, I'd be afraid for their safety, but we'll protect our First Amendment."

Trump transition spokesman Jason Miller defended his boss's position during an appearance on CNN.

"Flag-burning should be illegal," he said on CNN's "New Day."

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The issue appeared to be an uncomfortable one for some in Trump's party, including Sen. John McCain, R-Ariz.


McCain initially told reporters on Capitol Hill that he thinks there should be "some punishment" for flag-burning despite his respect for the court rulings. But McCain, the chairman of the Senate Armed Services Committee, grew testy as reporters continued to pepper him with questions about Trump's tweet.

"My time is devoted to trying to make sure this nation is secured, not to comment on every comment of Mr. Trump," McCain said.

The flag-burning debate has been rekindled a number of times in the past quarter-century. A 2005 bill sponsored by Clinton, then a senator from New York, would have outlawed flag desecration when the intent was found to be a threat to public safety. Violations would have been punishable by up to a year in jail and a $100,000 fine.

A year later, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with McConnell among those voting in opposition.

On Tuesday, several liberal advocacy groups voiced dismay that Trump was seeking to revisit those debates.

"One of the founding principles of our nation is tolerance of peaceful protest," said Lee Rowland, a senior staff attorney for the American Civil Liberties Union.

In 2011, a State of the First Amendment survey found that 39 percent supported a constitutional amendment to make flag-burning illegal while 58 percent opposed it. The survey presented brief arguments for both positions before posing the question.

Earlier polls that did not explicitly mention First Amendment issues found more support for making flag-burning illegal. In a 2006 Gallup-USA Today poll, 56 percent said they would favor a constitutional amendment, while 41 percent said they were opposed.


Reed, the longtime Republican consultant who now works for the U.S. Chamber of Commerce, said Trump was reflecting the views of his base on the issue.

"This guy's got his finger on the pulse of the country more than most," Reed said.

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The Washington Post's Scott Clement contributed to this report.