We're Arguing About Flag Burning Again

Earlier today the admin unveiled a new executive order pertaining to flag burning. The portion of the EO that stood out to many of us freedom-lovers was this, bold my emphasis:

Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

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. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).

My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.

“If you burn a flag you get one year in jail,” Trump said [video] during the signing ceremony. The admin also posted it from the official White House X account:

I dislike flag burning but I dislike big government doing freedom-infringing things more.

Flag burning has been twice litigated and both times it was upheld as protected form of speech, regardless how much any of us dislike it.

Scalia said as a jurist who believes in a pure texualist reading of the Constitution, he has made some tough calls in his career, especially in free-speech cases where his vote went against his personal principles.

"If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," Scalia said. "But I am not king."

Scalia made similar comments at a March 2014 appearance in Brooklyn, where he called Gregory Lee Johnson, who brought the 1989 flag-burning lawsuit, a "bearded weirdo." (He made similar comments at a 2012 appearance in Wyoming, a 2005 appearance at the University of Michigan event and in 2004 at a William and Mary event.)

Back in 1989, Scalia was the fifth and deciding vote in the Texas v. Johnson decision that upheld flag burning in Texas, and a year later, he voted against a federal law that banned flag burning in United States v. Eichman.

There is a difference in actions that may inspire riots or violence and actions that expressly call for riots and violence. Of all people, Republicans should know this. Trump was falsely accused of inciting January 6th even though he never expressly called for such and it’s why he was never charged for it.

As for the comparisons to cases where people were jailed for burning or otherwise damaging trans/pride/BLM flags, the difference in the cases circulating online and the issue of flag burning is that in the other cases, the trans/pride/BLM flags were private property taken and set ablaze, thus charges for damaging private property were levied, though I agree that the penalties were ridiculously punitive due to politics. (I actually don’t get the penalties for the separate cases of tire marks on pride crosswalks. Crosswalks are painted onto the asphalt. Tires go on asphalt. I think the cases involving crosswalks are idiotic.)

The government cannot use whether or not speech or expression will make people mad as the measure for whether or not it is free speech. Our First Amendment is the hedge of protection against this.

The Trump admin has racked up a lot of successes thus far, so I’m confused why he’s wasting political capital on this right now. I’ll talk a bit more about this on tomorrow’s show.

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