It came across Donald Trump’s Twitter feed early Tuesday morning, seemingly out of the blue: a demand that those who burn the American flag 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 U.S. Supreme Court ruled long ago that flag desecration is considered free speech and that it is unconstitutional to punish someone by stripping their citizenship.
Members of Maine’s congressional delegation all said they find flag desecration distasteful, but were split over whether it should be against the law. Like many states, Maine has a state law making it a crime to deface the flag, but the American Civil Liberties Union of Maine says it has rarely, if ever, been enforced and would violate the First Amendment if it was.
Whatever Trump had in mind, his outburst underscored a key aspect of his 3-week-old transition: He is continuing to cater to his base – the largely white, working-class voters who 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 presidential 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.”
TWEET ‘LIKED’ BY 145,000 PEOPLE
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.
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 Republican 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 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’ “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.”
SCALIA BACKED RIGHT TO BURN FLAG
Tuesday also was not the first time that 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 to 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 at 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 Tuesday to offer support for Trump’s view. McConnell said the Supreme Court had spoken on the subject of flag-burning, noting 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’ position during an appearance on CNN. “Flag-burning should be illegal,” he said on CNN’s “New Day.”
MAINE LAW BANS FLAG DEFACING
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.
Like many states, Maine has a law that makes it a crime for someone to mutilate, deface, trample or cast contempt upon either the U.S. flag or the Maine state flag, and also allows for a fine of up to $50 for anyone who uses a flag for publicity.
But Zachary L. Heiden, legal director for ACLU of Maine, said he is unaware of any instance when the law was enforced because residents, law enforcement and prosecutors know flag-burning is a form of constitutionally protected free speech.
A senior staff attorney for the national ACLU, writing on the group’s blog Tuesday, denounced Trump for his tweets, citing Scalia’s statements. Lee Rowland also said that peaceful protest can’t be punished by government and that stripping someone of citizenship is not an appropriate response to dissent.
“It’s hard to imagine anyone committing two worse constitutional errors in 140 characters or less,” he wrote.
SEN. KING, PINGREE CITE FREE SPEECH
A call to Gov. Paul LePage’s press secretary Tuesday evening for comment on Trump’s tweet, and whether LePage thinks the state law should be enforced in cases of political flag-burning, got no response.
Independent Sen. Angus King and Rep. Chellie Pingree, D-1st District, said they find flag-burning distasteful, objectionable and painful, but that its destruction is a form of constitutionally protected free speech that has twice been affirmed by the Supreme Court.
“Free speech, if it is to mean anything, must also include the speech we find offensive, for once we start limiting even the most disagreeable speech, then there will be no clear place to stop,” said King spokesman Scott Ogden. “The only thing worse than burning the flag is gutting the First Amendment.”
In a separate statement, Pingree said: “People in this country have a right to think what they want to think, say what they want to say, and demonstrate how they want to demonstrate without fear of being punished by the government. I don’t think Congress or the president should be in the business of taking people’s rights away.”
COLLINS, POLIQUIN BACK AMENDMENT
A spokeswoman for Sen. Susan Collins said the Republican has supported past efforts to allow the government to protect the flag as a symbol of the nation and of sacrifices made by the military.
“Given our flag’s unique importance, Senator Collins believes that government has a legitimate interest in protecting it, and she has supported past efforts to do so,” said Collins spokeswoman Annie Clark. “The Supreme Court, however, has specifically declared that the physical desecration of the flag is protected under the First Amendment. As such, a constitutional amendment would be required before any laws prohibiting flag desecration could be passed.”
Collins supported a proposed 2006 constitutional amendment that would have allowed Congress to adopt legislation to prohibit flag desecration, and Clark said Collins’ position has not changed.
Rep. Bruce Poliquin, R-2nd District, said he would support a constitutional amendment. The amendment process, which requires states’ approval, would allow for a full debate on the proposal’s merits, he said.
“Too many men and women have died fighting for our country for there to be no penalty for those that desecrate our nation’s flag,” Poliquin said in a written statement.
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.
In 2011, a State of the First Amendment survey found that 39 percent of respondents supported a constitutional amendment to make flag-burning illegal and 58 percent opposed it. The survey presented brief arguments for both positions before posing the question.
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,” he said.
Staff Writer Penelope Overton contributed to this report.
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