No, President-Elect Trump, You Can’t Get Locked Up or Lose Your American Citizenship for Political Speech

President-elect Donald J. Trump tweeted today that anyone who burns a flag should be jailed or even stripped of their U.S. citizenship. The idea that the government could use citizenship as a punishment for political speech is not simply unconstitutional, but fundamentally un-American.

This tweet offers not one but two ideas that are staggeringly wrong from a constitutional point of view: that peaceful protest can be punished by the government and that stripping someone of their American citizenship is an appropriate response to dissent. The U.S. Constitution, however, prevents both of those ideas from becoming reality. Indeed, it’s hard to imagine anyone committing two worse constitutional errors in 140 characters or less. But perhaps I shouldn’t hold my breath.

First, one of the founding principles of American democracy is our tolerance of peaceful protest. Flag burning, like other forms of dissent, is political speech that is fully protected by the First Amendment to the U.S. Constitution. That means this speech can’t be censored by the government, and it can’t be made a crime.

Trump's Flag Burning Tweet

And you don’t have to take it just from me. Someone Mr. Trump claims to respect highly, Supreme Court Justice Antonin Scalia, explained that if he were “king,” he’d happily imprison those who burned the U.S. flag.  But he quickly added that because we live in a constitutional democracy, such punishments were off the table: “I mean, that was the main kind of speech that tyrants would seek to suppress.” That quote now seems quite prescient just a few short years later.

Indeed, it’s hard to imagine anyone committing two worse constitutional errors in 140 characters or less.

But failing to recognize the First Amendment’s protection for political speech was only one of the two constitutional impossibilities contained in Trump’s tweet. As our Supreme Court affirmed nearly 50 years ago, it is unconstitutional to strip any American of her citizenship without consent — including for even the most heinous crimes. (Indeed, while Charles Manson and the Unabomber may rightly be rotting in jail, I haven’t heard a single suggestion that either complete their sentences stripped of their citizenship.) As the Supreme Court correctly noted, “Citizenship is no light trifle.” It is no mere pawn to use as punishment, let alone a tool to control the political beliefs of the citizenry. Scalia was correct — that way lies only tyranny.

Fortunately, our First Amendment rights have deep and strong roots in the federal courts, and it’s going to take a lot more than uneducated tweets to uproot these core liberties. The alternate reality that Trump tweeted about just can’t happen as long as our Constitution gets in the way.

No matter how much you bellyfeel that duckspeak.

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Ernest Vandermast

"citizenship is no light trifle" is exactly why those that come to this country legally value it and those that come illegally do not

Anonymous

You sir are ignorant. Most ilegal aliens would never disrespect the flag
They are the hardest working people in the country, and they don't what to be noticed.

Richard A.

Strange words coming from a family of draft dodgers. Was he willing to put his butt on the line and die for the sentiment in that tweet? Doesn't look so. It's a sentiment I'll file away under Beautiful Sayings: B.S.

from Richard A., Combat Veteran 1970-1972

Anonymous

Lol! Him dad no war! Him can't have point! Lol. You dumb caveman.

Dan M.

Richard, I totally agree with you. Just remember tRump is full of lies.
Anonymous, posted above my comment. Grow up and have some respect.

Anonymous

Just so you know (if you don't already) and I hope the right person sees this, Donald Trump said he's going to "rewrite parts of the Constitution" so they reflect what he wants to do (in this case, with immigration laws.) That's exactly what BUSH did with terrorism laws that ruined our case, and Trump said he's going to do it with immigration laws. I'm not going to try to GUESS if he's talking BS, I'm going to assume he means it. I don't play childish games and besides, Bush already did it and removed the death penalty from the options of what could be done to 9/11 defendants. Either Trump already knew he could ask someone to do it or someone told him he can have parts of the Constitution rewritten. I'm telling it because I don't want it to happen again.
I voted for Bush because I thought he was going to get justice the proper way, then I found out he did THAT. Which is one reason I DIDN'T vote for Trump. Like I said, I don't play guessing games. I assume he might do it, not that he's talking childish trash like he was with saying he'd torture them worse than Bush did.

Anonymous

Donald Trump needs to be stripped of his potential presidency.

adam stoler

Amen.He doesn't read, is ignorant of the Constitution, and couldn't tell you what is in the Bill of Rights. great leadership you've elected America- an ignoramus willing to gut your rights because you gave him the chance to do so.
I am not worried as much anymore.:he is so arrogantly ignorant that his moves will turn out to be stupid, and yes, he will not serve out his term. And i believe the GOP will lead the way in getting rid of this national embarrassment. if not, hang on, there's always massive civil disobedience to bring his regime to its' knees.

Anonymous

Amen Amen

Mark McDonald

Hear! Hear! By Brut force if necessary.

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