Early Tuesday morning, President-elect Donald Trump tweeted his support for imprisoning and revoking citizenship for those who burn the U.S. flag.
Chris Cuomo of CNN’s “New Day” asked Jason Miller, communications director for Trump’s transition team, about the tweet.
Cuomo asked Miller if he could agree that burning the flag, “as much as we might hate it,” was defended under the guarantee of freedom of speech found in the First Amendment.
“Chris, flag burning is completely ridiculous. I think the vast majority of Americans would agree,” Miller began. He attempted to change the subject to Trump’s transition, but Cuomo quickly brought the conversation back to get an answer.
“When the president-elect says something…we got to listen,” Cuomo noted. “When he says that something should be illegal that is a protected constitutional right, I’m not saying I like it, but that’s a big part of the First Amendment in this country.”
Cuomo reminded Miller that constitutional rights should be respected whether or not people agree with how they are carried out.
When asked if he could agree, Miller said that he could not and finally declared, “Chris, it absolutely should be illegal.”
Miller repeated his belief that “most Americans would agree with me that flag-burning should be illegal.” To that, Cuomo reminded him, “But it is constitutional.”
Cuomo asked if Trump realized that it was already constitutional law. “It should be illegal, Chris,” Miller replied.
As has been pointed out, Trump’s tweet was antithetical to the First Amendment. Various Supreme Court decisions and justices have reflected the “legality” of such an action.
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” argued Justice Anthony Kennedy in the 1989 Texas v. Johnson decision:
Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
The late Justice Antonin Scalia also famously spoke in favor of the First Amendment in a 2012 interview with CNN:
Yes, if I were king, I…I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress. Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea — I hate the government, the government is unjust, whatever.