The Supreme Court of the United States has said that flag burning is constitutionally-protected free speech, but in the eyes of President-elect Donald Trump and the South Carolina Code of Laws, flag-burners could be thrown in jail.

After a nighttime tweetstorm that included reposting a 16-year old’s hot take on CNN’s political coverage, the president-elect posted at 7:55 a.m. that “there must be consequences” for burning the American flag, a long-debated form of political dissent. Trump suggested “loss of citizenship or year in jail” for offenders.


The Supreme Court of the United States ruled in 1989 that flag-burning is a protected form of speech under the First Amendment to the Constitution with opposition from liberal justices. At the time, nearly every state had laws criminalizing flag desecration. Some, including South Carolina, still do. South Carolina’s law, last changed in 1962, prohibits acts that “publicly mutilate, deface, defile, defy, jeer at, trample upon or cast contempt, either by word or act” the flag. Violation carries a $100 fine or 30 days in jail plus a $50 penalty for each offense.

The South Carolina law is one of a few in the nation that also protect the Confederate flag from desecration.

The reason why a law that would not stand up in court remains on the books could be practical or political, says College of Charleston political science assistant professor Claire Wofford. The laws stick around until a legislator takes the initiative to repeal them, “so sometimes it’s just easier to leave it on the books and ignore it,” says Wofford. Or it could be more thought out than that. Wofford: “Sometimes legislators take a quiet (or not so quiet) pleasure in the symbolic rejecting of what SCOTUS has done.”

The last time a Constitutional amendment prohibiting flag burning came before Congress a decade ago, South Carolina’s entire delegation voted in favor of it (House, Senate). Congressman Jim Clyburn and U.S. Sen. Lindsey Graham are the only remaining members of that delegation.