Flag Burning is Protected Speech
The First Amendment protects speech we don't like and find offensive, especially when viewed as "fighting words."
President Donald Trump on Monday signed an executive order that orders the U.S. Department of Justice to “vigorously prosecute” people who burn the U.S. flag and to pursue litigation to clarify the scope of the First Amendment as it relates to flag burning.
The President also ordered the Attorney General to refer flag desecration cases that violate state or local laws to the appropriate state or local authorities.
Finally, the order directs the Secretaries of State and Homeland Security and the Attorney General to deny, prohibit, terminate, or revoke visas, residence permits, or naturalization proceedings and other immigration benefits, or seek removal from the United States whenever there has been an “appropriate determination” that foreign nationals permits that under applicable law.
The executive order states, “Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.”
In 1989, the Supreme Court ruled 5-4 in Texas v. Johnson that the state of Texas could not criminalize flag burning. It ruled that burning the American flag, even if offensive to many, is a form of symbolic speech protected by the First Amendment’s guarantee of free expression.
In 1984, Gregory Lee Johnson burned an American flag during a political protest at the Republican National Convention in Dallas to oppose President Ronald Reagan’s administration. He was arrested for violating a Texas law that criminalized desecrating the flag if the act was likely to offend or incite anger in others. Johnson was convicted, sentenced to one year in prison, and fined $2000.
The Court found:
Flag burning is expressive conduct:
The Court viewed Johnson’s act not as meaningless destruction, but as a political expression — a powerful means of communicating dissatisfaction with government policies.Offense is not enough to ban speech:
The Court emphasized that the government cannot prohibit expression simply because it offends people. Otherwise, unpopular or controversial political speech could easily be suppressed.First Amendment protection extends beyond words:
The Court made clear that the First Amendment covers not only spoken or written words, but also symbolic actions intended to convey a message (like wearing armbands, staging sit-ins, or burning a flag).Preserving national unity is not a sufficient reason to ban protest:
Texas had argued that flag burning threatened national unity and respect for the flag. The Court rejected this, saying the government cannot mandate respect for a symbol by punishing dissidents.
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,” Justice William Brennan, wrote in the majority opinion. He was joined by conservative icon Justice Antonin Scalia.
Then, in response, Congress passed the Flag Protection Act of 1989 that made it a federal crime to desecrate the American flag regardless of whether it caused a disturbance or offense.
That law was challenged and the Supreme Court affirmed its earlier decision with another 5-4 ruling in United States v. Eichman. They stated that the law was still aimed at suppressing expression.
The order’s statement that “the Court has never held that the American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected” is simply not true.
They have ruled on that, and it is.
This is a non-starter in the courts, and frankly the order is unenforceable just based on the language close to the end. It says, “This order shall be implemented consistent with applicable law…”
There is no applicable law. This is for show and the only thing it will accomplish is getting leftists to go out and burn flags in defiance.
Which I think was the unstated goal.