President-elect says people who burn the US flag should get loss of citizenship or a year in jail, but Obama spokesman says act is protected by constitution
The White House has repudiated Donald Trumps assertion that protesters who burn the American flag should potentially be imprisoned or stripped of their citizenship.
The president-elect tweeted early on Tuesday: Nobody should be allowed to burn the American flag if they do, there must be consequences perhaps loss of citizenship or year in jail!
It was unclear what had triggered the comment, but it appeared to coincide with a report on the Fox News channel about students at a college in Massachusetts allegedly burning a flag in protest at his shock election win. Trump is known to be an avid consumer of cable TV news.
Josh Earnest, the White House spokesman, told reporters that freedom of expression is enshrined in the US constitution. The need to protect those rights is in place to protect speech and expression not just when we agree with it but also when we find it offensive, he said.
Many Americans the vast majority of Americans, myself included find the burning of the flag offensive but we have a responsibility as a country to carefully protect our rights that are enshrined in the constitution.
Earnest added: This is a bipartisan sentiment. I know that there are conservatives on the supreme court that share the view that Ive just articulated. I know that there are Democrats and Republicans in the United States Congress that share the view Ive just articulated, and it certainly is consistent with the kind of governing agenda that President Obama has pursued here in the White House during his eight years in the Oval Office.
Asked if the president, who has spoken to Trump by phone more than once since the election, is concerned about such views, Earnest replied: This is not the first thing that the president-elect has said or tweeted that President Obama disagrees with.
Freedom of speech extends to Twitter, he said, so theres a little irony in this situation.
The supreme court ruled in 1989 that flag-burning is expressive conduct protected by the first amendment. Among those voting with the court majority in the Texas v Johnson case was the late justice Antonin Scalia, for whom Trump has regularly expressed admiration.
The president-elects proposal was also condemned as unconstitutional on another count. In a 1967 case, Afroyim v Rusk, the supreme court ruled that the constitution does not allow the government to take away an individuals citizenship against their will.
Shane Kadidal, a senior managing attorney at the Center for Constitutional Rights, said: There are two baseline constitutional tenets that he manages to screw up in 140 characters.
Scalia was among the judges in the case that established that flag burning is constitutionally protected speech, Kadidal added, while its even more established, by half a century, that one can only lose ones citizenship by voluntarily means.
The supreme court has spoken in the flag-burning case. The constitutionality of that is pretty settled. The law is clear and has been for some time, said Carl Tobias, a law professor at the University of Richmond.
Burning the flag is widely seen as a social taboo but not a legal one. Its a freedom weve had for 200 years and it had to trump the other interests, no matter how vile we might think that activity is. Justice Scalia thought the constitution had to be paramount.
Trump has previously been accused of showing little respect for the US constitution. Khizr Khan, a Muslim whose son was killed while serving in Iraq, memorably questioned at the Democratic national convention whether the celebrity businessman had even read it.
On Tuesday there was also criticism from Trumps own party. David Frum, former speechwriter for President George W Bush and now a senior editor of the Atlantic, tweeted: If flag-burning merits loss of citizenship, what should be the penalty for a Nazi salute by a Trump supporter?
He also posted: Donald Trumps political career is one protracted flag burning. The symbols of the Republic properly belong to his opponents.
Congressman Sean Duffy, a Republican from Wisconsin, told CNN: We want to protect those people who want to protest … I disagree with Mr Trump on that.
Trump would not be the first president to attempt a ban on flag burning. The Flag Protection Act of 1989 was supported at the time by George HW Bush before it was ruled unconstitutional, and the Flag Protection Act of 2005, another failed attempt to criminalise flag burning, was co-sponsored by then senator Hillary Clinton.
But Mitch McConnell, now Senate majority leader, wrote a 2006 editorial for the Central Kentucky News that said: No act of speech is so obnoxious that it merits tampering with our first amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our first amendment might.
Not for the first time, the president-elects Twitter habits deflected attention from transition business, although that too is being played out in an unusually public manner. He has now held 68 meetings with potential administration members, transition spokesperson Sean Spicer said.
Chao, who was labour secretary under Bush, is married to McConnell. She was also a member of Trumps Asian Pacific American Advisory Council during his presidential campaign.
Price, an orthopedic surgeon from Georgia, has spent more than a decade in Congress and influenced the healthcare plan that House speaker Paul Ryan is pushing as an alternative to President Obamas signature Affordable Care Act. Price is also a fierce opponent of abortion rights and described the legalisation of gay marriage as a sad day for marriage.
For Democrats it was yet another ominously rightwing appointment. Incoming Senate minority leader Chuck Schumer said Price has proven to be far out of the mainstream of what Americans want when it comes to Medicare, the Affordable Care Act, and Planned Parenthood.
Schumer said those programmes have helped millions of Americans, including seniors, families, people with disabilities and women have access to quality, affordable healthcare. Nominating Congressman Price to be the HHS secretary is akin to asking the fox to guard the hen house.
House minority leader Nancy Pelosi said: If Tom Price has his way with the Affordable Care Act, millions of families who have finally found affordable coverage for themselves and their children will be pushed back into the cold. Doctors would be hounded out of lifesaving research, and women would be denied their right to contraception and comprehensive health care.
Trump was due to have dinner on Tuesday night with Mitt Romney, the Republican nominee for president in 2012 and a former foe who is now in contention for the position of secretary of state. The billionaire will begin a thank you tour on Thursday night with a rally in Cincinnati, Ohio.