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Donald Trump Says He Wants to Jail Flag-Burners — Even Though the Supreme Court Deemed the Practice Legal

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President-elect Donald Trump tweeted early Tuesday morning that burning the American flag should be a crime punishable by jail time or “loss of citizenship.”

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he wrote.

It’s unclear what prompted Trump’s tweet, but it was sent out at 6:55 a.m., shortly after Fox News aired a segment about a protest at Hampshire College in Amherst, Massachusetts. About 1,000 veterans reportedly gathered at the school Sunday to protest the college’s decision to remove all flags from campus, including the U.S. flag, after students allegedly burned flags to protest Trump’s election.

Laws against burning the American flag were struck down by the Supreme Court in 1989 and 1990. In both cases, the Supreme Court declared the right to burn or desecrate the American flag a form of protected free speech.

Trump’s suggestion that those who burn the American flag should lose their U.S. citizenship as a penalty is also legally untenable. A 1958 Supreme Court decision rejected the practice of stripping U.S. citizenship as a form of criminal punishment.

CNN legal analyst Steve Vladeck, a professor at the University of Texas Law School, noted: “Even if flag burning wasn’t protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign.”

However, Trump transition spokesman Jason Miller made clear on Tuesday that the president-elect isn’t in step with the Supreme Court’s previous rulings.

“Flag burning should be illegal,” Miller told CNN’s Chris Cuomo. “The President-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”