“Nobody should be allowed to burn the American flag,” President-elect Donald Trump tweeted on Tuesday. “If they do, there must be consequences—perhaps loss of citizenship or year in jail!”
What many may not know is that a decade ago, Hillary Clinton called for a similar punishment. Then a United States Senator for New York, Clinton co-sponsored the Flag Protection Act of 2005. Senator Robert Bennett, a Republican from Utah, introduced the bill to the Senate in October 2005.
“The flag of the United States is a unique symbol of national unity and represents the values of liberty, justice and equality,” the bill said. “Abuse of the flag,” it continued, “causes more than pain and distress to the overwhelming majority of the American people and may amount to fighting words or a direct threat to the physical and emotional well-being of individuals.” If intended to incite violence, the bill stated, destroying a flag went beyond political speech and therefore was not protected under the First Amendment, as the Supreme Court had ruled it was in 1989 and 1990.
For “any person” who burns a flag or causes one to be burned in order to incite violence, the bill called for a maximum fine of $100,000 or one year imprisonment, or both. If the desecrated flag belonged to the U.S. government, the maximum penalties would rise to $250,000 and two years behind bars. The bill did not call for a loss of citizenship, as Trump proposed Tuesday.
The Senate referred the bill to the Committee on the Judiciary, but it did not advance beyond it. Two co-sponsors of the bill, Senator Thomas Carper of Delaware and former Senator Mark Pryor of Arkansas, were not available for comment. Bennett died in May.
A spokesman for a third co-sponsor, Senator Barbara Boxer of California, said by email, “She believes flag burning is protected under the Constitution,” and noted that the bill proposed penalties only under narrow circumstances.
The spokesman, Zachary Coile, said the senators had introduced the bill in response to a constitutional amendment regarding flag destruction that other lawmakers had proposed. That amendment, which would have given Congress the “power to prohibit the physical desecration of the flag,” fell one vote short of the required two-thirds majority, Charles Babington of The Washington Post reported.
Clinton’s stance on flag burning and desecration earned her critics. A 2005 opinion piece in The New York Times said she was “pandering.” Another Times article, by Anne Kornblut, said her position on the issue had “drawn the scorn of the liberal Democratic base.” The Times opinion piece noted that “flag-burning hasn’t been in fashion since college students used slide rules in math class and went to pay phones at the student union to call their friends.”
Destroying the American Flag Is a Fixture of Protests, Especially on College Campuses
Students at Occidental College tore apart a display of thousands of American flags in September, one for each of the victims of the September 11, 2001 attacks. Student activists said in a statement that they felt the flags were “exclusionary” and that they ignored the “fear and trauma” that Native American and African-American students experience. The school later said that “the destruction of a memorial is not a form of protected speech” and that it had taken disciplinary action.
Days after the election, students at Brown University vandalized American flags that were on display. A student posted on Facebook about the flags, “When I look at them, all I feel is overwhelming nausea, and all I see is a symbol of the oppressing white nationalism that has jeopardized myself and so many others at Brown and abroad,” Laura Felenstein wrote in the student newspaper. Brown President Christina Paxson said that she was “appalled” by the incident, and it violated the student conduct code.
Students burned a flag at American University shortly following the election, too. A spokeswoman said the school “does not condone the burning of the American flag, even though the act is protected speech.” At Hampshire College, students burned a flag and demanded the school stop flying it, a student publication reported. Days later, the school said that it would no longer fly the American flag, but cited reasons other than those student demands.
Community members at Loyola University Maryland complained that the school’s going through with a planned “Party in the USA” event after such a divisive election, which no doubt would feature American flags, would be “very alienating, divisive and harmful. The school said the event went on as scheduled and “was a great success with strong attendance and wonderful energy.”
The Supreme Court decisions regarding flag burning are widely accepted and it is rare for someone from either political party to attempt to challenge them, First Amendment experts say.
“I think the truth is those decisions were right, and over time, people have come to accept them,” says Geoffrey Stone, a professor at the University of Chicago Law School and a First Amendment scholar. “Until Donald Trump just said this, this has not been a big issue.” Stone notes that even the late Antonin Scalia, whom Trump has called “a brilliant Supreme Court justice, one of the best of all time,” agreed that flag burning was protected speech.
“There’s a clear bipartisan consensus today that the First Amendment protects the right to burn the flag,” says Jeffrey Rosen, president and chief executive officer of the National Constitution Center. If the flag burning issue was brought again before the Supreme Court, he adds, “there is little doubt that the current court would reaffirm that ruling.”