President-elect Donald Trump suggested on Twitter that there should be penalties for burning the American flag possibly jail time or loss of citizenship. The Supreme Court has twice ruled 5-4 that the right to burn the flag was protected by the First Amendment. (CNN, November 29, 2016, by David Wright)
UCLA law professor Eugene Volokh writes that the Supreme Court was clear that flag-burning was symbolic expression. Many argue that flag-burning could not be construed as speech and the First Amendment does not extend to protecting forms of expression including flag-burning and burning crosses. Volokh argues that on originalist grounds symbolic expression should enjoy the same protection as free speech and that was the case in colonial times. (The Washington Post, November 29, 2016)
Volokh also addressed the possibility that the government could strip the American citizenship of flag-burners. Volokh wrote that the Constitution establishes that someone could only lose citizenship by renouncing it voluntarily and that flag-burning did not in itself constitute intent to renounce citizenship. (The Washington Post, November 29, 2016)