The burning of the American flag has been seen throughout the history of the United States, but could it become a crime under President-elect Donald Trump?
Since Trump was elected as the next President of the United States earlier this month, there have been a collection of incidents where citizens burned the American flag in disapproval of the outcome.
Trump took to Twitter Tuesday to air some grievances, as he's done in the past, and one of those was calling for punishment should anybody want to burn the American flag.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Whether you agree or disagree with his sentiment, he's sparked the conversation. Before you can understand the “why it's not possible,” you must look at the timeline of flag burning laws in the U.S.
In 1968, Congress approved the first federal flag desecration law following a flag burning incident in protest of the Vietnam War. The federal law made it illegal to knowingly desecrate or deface any flag of the U.S., with punishment resulting in being fined or imprisonment.
The 1989 case of Texas v. Johnson became the first time the Supreme Court had directly considered protected expression under the First Amendment Free Speech clause to flag burning. A 5-4 Supreme Court decision found burning the flag was a form of symbolic speech, which is protected under the First Amendment.
Former Supreme Court Justice Antonin Scalia was one in favor of the 5-4 decision that it's protected under the First Amendment, despite being a Republican.
So, with symbolic speech, which this act is, you're not speaking or talking, but your actions are expressing your idea.
Jesse Choper, Dean and Earl Warren Professor of Public Law Emeritus University of California School of Law, Berkeley, believes what Trumps to be unobtainable, under previous statutes and current laws currently in place.
"A president doesn't have any power to do that, it takes congress and legislation," Choper said. "If there's no federal statute he has no legal right."
It does depend on what you're being prosecuted for, according to Choper. However, with a Supreme Court decision in place protecting flag burning, it will continue to be protected so long as the First Amendment exists.