If Trump Wants to Outlaw Flag Burning, He Should Look To Israel

Image by Sakis Mitroldis / Getty Images

By Jake Romm November 29, 2016

Early this morning, Donald Trump tweeted the following:

The tweet is possibly a response to the protests occurring at Hampshire College, a small liberal arts school in Amherst Massachusetts. The protesters are upset that Hampshire decided to remove all flags from its campus after an incident on November 10th or 11th in which the campus’s American flag was burned.

This is not the first time that flag burning, a free expression act protected by the First Amendment, has come under attack. In 1968, in response to numerous flag burnings at Vietnam War protests, Congress passed the Flag Protection Act which made it illegal to desecrate the flag and enacted a penalty of a maximum one year prison sentence, a fine, or both.

The law remained unchallenged in the Supreme Court until 1989 when, in Texas v. Johnson, the Supreme Court struck down a Texas statute that banned flag burning, thus ruling that the Texas law, as well as the Flag Protection act of 1968, are unconstitutional on First Amendment grounds. Congress tried to update the law shortly after the Johnson ruling, but their efforts were not deemed sufficiently distinct from the Texas law to pass constitutional muster by the Supreme Court in United States v. Eichman.

In 1995, Congress again tried to proscribe flag burning, this time with a constitutional amendment, but this effort, and all subsequent amendment efforts, failed (it is important to note that this has been a bi-partisan issue – Hillary Clinton introduced an unsuccessful bill to outlaw flag burning in 2005).

America is hardly alone in its desire to limit free speech as it pertains to the flag, and lawmakers itching to outlaw flag burning need look no further than Israel’s Flag and Emblem Law. The Flag and Emblem law, which has been on the books since 1949, established a maximum one year penalty, a fine “not exceeding three hundred pounds [or lira]” (Israel has since switched to the shekel), or both.

The wording of the law, as opposed to its proposed American counterparts, is incredibly vague, ordering the punishment of anyone who: “insults, or causes to be insulted the State flag or the State emblem, or uses the State flag or the State emblem in a manner constituting insult to it.” What might constitute an insult is left to the imagination.

While the original 1949 law is restrictive enough, the Knesset recently approved an amendment that would bring up the maximum prison time to a period of three years and the maximum fine to around $15,000. The amendment also gives the Israeli courts the power to deny state benefits, such as health care or social security, for a period of six years to those convicted under the law.

While none of the failed U.S. laws were quite as severe as the new Israeli law, and Donald Trump’s tweet does not constitute a concrete policy proposal, it is worth noting that restrictions on flag burning enjoy a decent amount of support amongst the American public. A 2006 Gallup/USA Today poll (recent data is scant) shows that 56% of respondents were in favor of a constitutional amendment granting Congress the power to prohibit flag burning.

Jake Romm is the Forward’s culture intern. Contact him at [email protected] or on Twitter, @JakeRomm

The Forward is free to read, but it isn’t free to produce

I hope you appreciated this article. Before you go, I’d like to ask you to please support the Forward.

Now more than ever, American Jews need independent news they can trust, with reporting driven by truth, not ideology. We serve you, not any ideological agenda.

At a time when other newsrooms are closing or cutting back, the Forward has removed its paywall and invested additional resources to report on the ground from Israel and around the U.S. on the impact of the war, rising antisemitism and polarized discourse.

Readers like you make it all possible. We’ve started our Passover Fundraising Drive, and we need 1,800 readers like you to step up to support the Forward by April 21. Members of the Forward board are even matching the first 1,000 gifts, up to $70,000.

This is a great time to support independent Jewish journalism, because every dollar goes twice as far.

— Rachel Fishman Feddersen, Publisher and CEO