President-elect Donald Trump’s declaration via Twitter that burning the American flag should be a crime drew strong criticism in the Valley — even from some who deplore the act and opposed Hampshire College’s decision not to fly a flag after a recent burning incident.
“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Trump said in a tweet dispatched at 6:55 a.m. Tuesday.
The tweet did not refer to a specific incident, but it came shortly after Hampshire College removed the Stars and Stripes from a flagpole at the center of campus in response to protests by students who said it was a symbol of injustice and oppression. The college made its decision after a so-far anonymous person or persons burned the flag under cover of darkness on the eve of Veterans Day.
Other flag-burning incidents have occurred since Trump’s election, as a wave of protests has swept the nation. One flag was burned outside Trump Tower in New York City, while another was set ablaze at American University in Washington.
Many, including Hampshire College President Jonathan Lash, took exception Tuesday to Trump’s call for harsh consequences for flag-burners — punishments that would appear to run afoul of a U.S. Supreme Court ruling that such protests are protected by the First Amendment.
“The Supreme Court has been very clear that flag burning is protected by free speech,” Lash said in a phone interview Tuesday.
State Rep. John Velis, a Democrat from Westfield, was among a handful of elected officials at Sunday’s protest at Hampshire College. Burning the American flag is “despicable and morally repugnant,” he said, but also protected by law.
“The United States is a nation of laws, not feelings,” he told the Gazette. “The United States Supreme Court, on two separate occasions, has upheld an individual’s right to burn the flag based on free speech, and as such, it is the law of the land and is to be respected.”
In the 1989 case, Texas v. Johnson, justices ruled 5-4 that flag burning constitutes “symbolic speech” protected by the First Amendment. The case reached the court after Gregory Lee Johnson had burned the American flag outside of the 1984 Republican National Convention in Dallas to protest the policies of then-president Ronald Reagan.
Congress responded by passing the Flag Protection Act in 1989 to make it a crime for someone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag. But in 1990, the Supreme court ruled the law unconstitutional.
“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering,” former Supreme Court Justice William Brennan said in the 1990 case.
The Valley’s top prosecutor echoed that sentiment Tuesday.
“What Donald Trump is proposing for punishments for the burning of the flag are unconstitutional,” Northwestern District Attorney David Sullivan said in an email. “I believe that our First Amendment protections are of even greater importance with a president–elect who blatantly disregards civil liberties and the rule of law in many of his speeches.”
Since the 1990 ruling, politicians have discussed amending the Constitution to outlaw flag burning. In 2006, the Senate attempted to adopt an amendment prohibiting desecration of the American flag, but it failed in a 66-34 vote, just one vote short of the two-thirds majority required to approve the legislation.
Sullivan also was among the hundreds of protesters at Hampshire College Sunday, criticizing its decision not to fly the American flag. He said Trump’s proposal to prohibit and punish flag burning would be a difficult undertaking and unlikely to be adopted by the requisite number of states.
“In our constitutional form of government the free press, legislative, and judicial branches serve as vital guardians to our civil liberties and safeguards to unfettered presidential powers,” he said.
Congressman Jim McGovern, D-Worcester, on Tuesday tweeted a response to Trump, saying: “America’s next president threatening to punish free speech with loss of citizenship. Outrageous and unacceptable.”
Springfield Mayor Domenic Sarno thinks differently.
“Though it’s protected under the Constitution, I tend to agree with President-elect Trump,” Sarno said in a statement.
Veterans make sacrifices for the country; many return injured and some do not come home at all, Sarno said. “You have to wonder why anyone in the United States of America would burn our flag. Our flag is a symbol of freedom, democracy, strength and hope.”
Hampshire College students demanded the flag be lowered on Nov. 9, the day after Trump’s election win, a reaction, the college said, to a “toxic” campaign season and vitriol against minorities. The flag was initially lowered to half-staff to “honor the students’ expression,” according to the college.
The following day, about 150 students demanded the school’s flag be removed altogether, and the next morning, on Veterans Day, the flag was found burned. Lash said the college does not know who is responsible for burning the flag or their motives.
On Nov. 18, Hampshire College removed the flag from the center of campus altogether, which college officials said is temporary. Lash said Sunday that before the flag is flown again, the college will moderate campus-wide discussions on how the flag sparks different emotions for different people. He said the issue is drawing attention to grievances carried by historically marginalized groups.
While the flag was taken down from the central location, people who have recently visited the campus say American flags fly in other locations at the school. College officials forbade a Gazette reporter and photographer from interviewing people on campus earlier this week and did not respond to questions about the other flags Tuesday.
The college’s decision to take down the central flag sparked an uproar beyond the campus borders, becoming a top trending item on social media nationwide. Hundreds of people, many holding flags, surrounded the campus Sunday and demanded that the college restore the banner. While the protest was generally peaceful, the appearance of a counterprotester prompted some in the crowd to hurl angry words at the counterprotester and the press covering the event.
“Like the vast majority of Americans, I believe the First Amendment is one of our most important and cherished rights. And the freedom of speech remains the cornerstone of our democracy,” Congressman Richard Neal said in a statement Monday. “But as the students, faculty and administrators of Hampshire College continue to debate some of the challenges facing our country today, I would encourage them to do so while flying the American flag on their campus.”
Another protest is planned for Sunday, Velis said Tuesday during a live interview in New York City with “Fox & Friends.”
“Notwithstanding the legality of the issue, there is absolutely no justification for removing the symbol for which so many have sacrificed in the name of freedom and the rule of law,” Velis said in an email. “It must be remembered that the flag is the true uniform to all our service men and women.”
Caitlin Ashworth can be reached at cashworth@gazettenet.com.