President Trump signed with a flourish on Monday an executive order directing the Justice Department to prosecute protesters who burn the American flag, “to the maximum extent permitted by the Constitution.” But the directive itself acknowledged how little that is.
Signing the order in the Oval Office, Mr. Trump delivered tough talk about punishing those who desecrate the national symbol: “If you burn a flag, you get one year in jail, no early exits, no nothing,” he declared.
But there was a significant disconnect between the president’s words and the order he signed. The text says nothing about putting people in prison for a year. Instead, it acknowledges that the Supreme Court in 1989 ruled that flag burning is a form of political expression protected by the First Amendment.
Mr. Trump’s order cited part of the court’s opinion suggesting that some flag-burnings may not be protected — actions that are likely to incite riots, for example. But that very section of the ruling made clear that flag burning to protest government policies was not the sort of incitement that could be prosecuted.
In his order, Mr. Trump instructed Attorney General Pam Bondi to look for ways to prosecute people who desecrate the national symbol “to the fullest extent permissible under any available legal authority” without running afoul of the First Amendment. The order offers some ideas: prosecuting “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights.”
The order also instructs administration officials to revoke visas and pursue deportation of noncitizens who burn American flags. That would raise similar First Amendment issues to those affecting the administration’s attempts to cancel visas and deport foreign students who protest Israel’s actions in the Gaza War, which are already under legal challenge.
The order adds that Ms. Bondi “may pursue litigation” to clarify what First Amendment exceptions apply to prosecuting flag burners. And it says if a flag burning incident might have violated local laws, such as against open fires, the federal government “shall refer the matter to the appropriate state or local authority for potential action.”
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Robert Corn-Revere, the chief counsel for the Foundation for Individual Rights and Expression, said that the First Amendment protects flag burning as an expression of political dissent and that Mr. Trump does not have the power to change that.
“While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it ‘uniquely offensive and provocative,'” he said, quoting a line from Mr. Trump’s order.
Mr. Corn-Revere continued: “You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.”
Mr. Trump has long railed against Americans who burn the flag. He has backed the idea of passing a constitutional amendment to ban the practice. In late 2016, after he won the presidential election, he suggested that flag burners should be punished with jail time or loss of citizenship.
The 1989 Supreme Court case, Texas v. Johnson, involved a protester who had burned a flag outside the 1984 Republican National Convention in Dallas as part of a political demonstration against Reagan administration policies. The protester, Gregory Johnson, was convicted under a state law that criminalized desecrating the flag.
The Supreme Court ruled that Mr. Johnson’s act was symbolic speech protected by the Constitution — effectively striking down laws against flag desecration across the country. In response, Congress enacted a federal law against such desecration, but in 1990, the same five-justice majority struck it down, too.
The majority in both cases included then-Justice Antonin Scalia, a hero to legal conservatives. He later talked about the case as an example of constitutional principles compelling a result that conflicted with his personal views.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia once said. “But I am not king.”
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