Though flag-burning has by no means been in style in America, condemning it has lengthy been a staple for politicians. On Monday, President Donald Trump joined the refrain by issuing an government order calling the act “uniquely offensive and provocative” and “a press release of contempt, hostility, and violence in opposition to our Nation.” The order directs federal officers to prosecute flag-burners each time doable.
However in 1989, after which once more in 1990, the Supreme Courtroom dominated that outlawing flag-burning violates the First Modification. As a younger lawyer with the Middle for Constitutional Rights, I represented the defendants in each circumstances, working underneath the civil-rights lawyer William Kunstler. Collectively, the 2 circumstances illustrate why punishing flag-burning is antithetical to free speech—and why Trump’s order is prone to backfire. Not solely will it encourage folks to burn flags in protest, as one fight veteran did in entrance of the White Home simply hours after the order was issued. It might additionally hand flag-burners a authorized protection within the uncommon state of affairs after they would possibly in any other case be prosecuted.
The order notes, appropriately, that flag-burners may very well be charged for violating normal, “content-neutral” prohibitions on public burning, which serve environmental or public-safety pursuits, despite the fact that the Courtroom has held that legal guidelines singling out the burning of flags are unconstitutional. Accordingly, the federal authorities has charged the fight veteran with violating a rule that bars burning of any type in D.C.’s Lafayette Park.
However Trump’s order might make even these sorts of prosecutions tougher. The order pronounces that Trump seeks to make use of content-neutral legal guidelines, that are agnostic concerning the message an act would possibly convey, to prosecute flag-burners exactly as a result of he doesn’t like their message. In so doing, Trump has furnished future defendants, and probably the protesting veteran, with proof to help a “selective prosecution” protection. When the federal government selectively enforces an in any other case content-neutral regulation—say, by prosecuting those that burn flags however not those that burn trash—and does so as a result of it disagrees with the message a person expresses, the Structure requires that the fees be dismissed.
The issue usually is proving that the federal government’s objective was unlawful. However the Trump order proudly pronounces it.
The story of how flag-burning got here to be constitutionally protected within the first place begins with Gregory “Joey” Johnson. A member of the Revolutionary Communist Celebration, Johnson burned a flag on the 1984 Republican Nationwide Conference, in Dallas, chanting “America, the pink, white, and blue, we spit on you.” He was convicted underneath a Texas statute that made it a criminal offense to burn or in any other case desecrate the flag “in a means that the actor is aware of will significantly offend a number of individuals prone to observe or uncover his motion.” (As with different flag-desecration legal guidelines, that language was wanted as a result of the traditional strategy to get rid of an outdated flag is to burn it. Nobody desires to prosecute the Boy Scouts for correctly retiring the Stars and Stripes.) Positive sufficient, not less than some onlookers testified that they have been significantly offended.
In Texas v. Johnson, the Supreme Courtroom reversed Johnson’s conviction. “If there’s a bedrock precept underlying the First Modification, it’s that the federal government might not prohibit the expression of an concept just because society finds the concept itself offensive or unpleasant,” Justice William Brennan wrote in 1989 for almost all, which included the conservative Justices Antonin Scalia and Anthony Kennedy. 4 justices dissented, together with the often staunch liberal John Paul Stevens, a World Battle II veteran who had been visibly upset throughout oral argument. The dissenters maintained that burning a flag is an “inarticulate grunt” fairly than protected speech, and that preserving the symbolic worth of the flag warrants jailing its desecrators.
Like many controversial selections, Texas v. Johnson was introduced on the finish of the Courtroom’s time period—and simply earlier than Congress’s summer season recess. The legislature postponed its break, and seemingly each member took the lectern to denounce the ruling earlier than going house for the Fourth of July. Republicans wished to revise the First Modification and exempt flag-burning from its safety. Democrats agreed that flag-burning needs to be prohibited, however favored altering federal regulation over amending the Structure. Liberal constitutional students reminiscent of Laurence Tribe of Harvard and Geoffrey Stone of the College of Chicago argued {that a} regulation prohibiting the act could be constitutional if it have been written to ban any desecration of the flag—not simply the type that offended onlookers—as a result of it could then be content-neutral. Congress overwhelmingly voted to do precisely that, passing the Flag Safety Act of 1989.
Johnson and several other of his fellow Revolutionary Communist Celebration members vowed to interrupt the regulation at 12:01 a.m. on the day it went into impact in an effort to immediate a take a look at case. However they made one tactical error: They burned the flag in New York Metropolis, the place nobody cared. The identical evening, a gaggle of younger folks in Seattle pulled down the flag flying over a post-office constructing and set it alight. Johnson awoke to study that the Seattleites had been arrested and charged underneath the brand new regulation. To not be ignored, he and his staff booked a practice to Washington, D.C., the place they burned flags on the steps of the Capitol. As they’d hoped, they received arrested.
The subsequent day, the prosecutor introduced in court docket that the USA could be charging three of Johnson’s associates with violating the brand new regulation, however not Johnson himself. (A disillusioned Johnson objected that this was “selective non-prosecution,” however the prosecutor later advised me that Johnson had did not get his flag lit.) The case shortly got here earlier than the Supreme Courtroom, which reaffirmed the Texas v. Johnson choice lower than a yr after issuing it.
Within the follow-up case, United States v. Eichman, the prosecution argued that the federal regulation merely sought to protect the flag’s bodily integrity as a marker of nationwide unity, to not punish the flag-burners for his or her message. However the Courtroom reasoned that the flag is at the start a logo, not only a bodily object. The one means that desecrating a logo might undermine nationwide unity, it reasoned, is by advantage of what the act communicates. And because the Courtroom had said a yr earlier, the federal government can’t punish speech just because it disapproves of its message.
That didn’t finish the controversy. All however one state—Vermont—enacted resolutions urging Congress to go a constitutional modification that will allow the punishment of flag-burning. The ensuing decision within the Home handed by the requisite two-thirds majority. It failed within the Senate on a number of events, nevertheless, and the controversy largely died down.
Then, on Monday, Trump revived it. His order posits a number of methods to punish flag-burners, past utilizing content-neutral legal guidelines. However they’re illusory. If somebody have been to burn a flag to incite violence or insult somebody in such a means as to trigger a battle to interrupt out, the order notes, the fire-setter may very well be punished—not for desecration however for both incitement or “combating phrases.” The take a look at for incitement, nevertheless, is extraordinarily demanding: Even speech expressly urging violence is protected until the federal government proves that it was meant to supply imminent violence, and that it was prone to have its meant impact. That customary is nearly by no means met, and to my data, no flag-burner has ever certified. As for “combating phrases,” no federal regulation prohibits them.
The chief order additionally threatens to revoke visas and search the removing of foreigners who burn American flags. However no regulation identifies flag-burning as a foundation for denying a visa or deporting anybody. And since the First Modification protects all folks in the USA, deporting a overseas nationwide for flag-burning could be simply as unconstitutional as jailing Johnson for doing so was.
Moreover, the order invitations Lawyer Normal Pam Bondi to “pursue litigation to make clear the scope of the First Modification exceptions on this space.” It’s unclear how she would do this, as any prosecution could be useless on arrival. However in any occasion, the Supreme Courtroom could be not possible to rethink the “bedrock precept” Texas v. Johnson introduced. The Courtroom has repeatedly cited the case with approval. And despite the fact that as we speak’s justices are typically extra conservative than have been the justices of 35 years in the past, in addition they have a extra sturdy view of the First Modification.
For all its fanfare, then, Trump’s order is at greatest an empty risk to flag-burners, and should even give them ammunition to keep away from punishment. It has already spawned not less than one flag-burning, and can virtually definitely result in extra. However it’s going to do nothing to broaden the federal government’s energy to punish those that burn the flag. And that’s appropriately. In a free nation, one is simply as free to burn the flag as to wave it.
