Trump’s words, expressed on Twitter early Tuesday morning, put him at odds with the late Justice Antonin Scalia, who was in the majority in the 1989 decision that said flag-burning is a form of speech that is protected by the First Amendment.
“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 said in a tweet.
Trump has called Scalia, who died in February, a great judge and said he would appoint someone to fill Scalia’s seat who is much like the conservative legal icon.
But in 1989, Scalia signed onto an opinion written by the liberal Justice William Brennan that struck down a criminal conviction under Texas law for burning a flag during a political protest.
Asked about that vote decades later in an interview on CNN, Scalia said he would outlaw flag-burning “if I were king.” But the First Amendment exists to protect “speech critical of the government. That’s the main type of speech tyrants would seek to suppress,” he said.
The White House echoed Tuesday that the First Amendment should prevail in such matters.
“We have a responsibility as a country” to carefully protect the rights enshrined in the Constitution, White House spokesman Josh Earnest said, adding that the burning of the U.S. flag offends most Americans, himself included.
House Majority Leader Kevin McCarthy said that he does not “support or believe in the idea of people burning the American flag. I support the First Amendment.” He added that Congress has no plans to take action against flag burning.
Also on Tuesday, Rep. Sean Duffy, R-Wis., took issue with the tweet. “We want to protect those people who want to protest….I disagree with Mr. Trump on that,” Duffy said Tuesday on CNN’s “New Day”.
Duffy is the chairman of the House Financial Services Committee’s panel on oversight and investigations.