Though flag-burning has by no means been widespread in America, condemning it has lengthy been a staple for politicians. On Monday, President Donald Trump joined the refrain by issuing an govt order calling the act “uniquely offensive and provocative” and “an announcement of contempt, hostility, and violence towards our Nation.” The order directs federal officers to prosecute flag-burners every time attainable.
However in 1989, after which once more in 1990, the Supreme Court docket dominated that outlawing flag-burning violates the First Modification. As a younger legal professional with the Middle for Constitutional Rights, I represented the defendants in each instances, working beneath the civil-rights legal professional William Kunstler. Collectively, the 2 instances illustrate why punishing flag-burning is antithetical to free speech—and why Trump’s order is more likely to backfire. Not solely will it encourage individuals to burn flags in protest, as one fight veteran did in entrance of the White Home simply hours after the order was issued. It may additionally hand flag-burners a authorized protection within the uncommon scenario after they may in any other case be prosecuted.
The order notes, appropriately, that flag-burners could possibly be charged for violating basic, “content-neutral” prohibitions on public burning, which serve environmental or public-safety pursuits, though the Court docket 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 variety in D.C.’s Lafayette Park.
However Trump’s order could make even these sorts of prosecutions harder. The order publicizes that Trump seeks to make use of content-neutral legal guidelines, that are agnostic in regards to the message an act may 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 presumably the protesting veteran, with proof to assist 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 problem usually is proving that the federal government’s goal 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 Social gathering, Johnson burned a flag on the 1984 Republican Nationwide Conference, in Dallas, chanting “America, the crimson, white, and blue, we spit on you.” He was convicted beneath 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 more likely 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 eliminate an outdated flag is to burn it. Nobody desires to prosecute the Boy Scouts for correctly retiring the Stars and Stripes.) Positive sufficient, a minimum of some onlookers testified that they had been significantly offended.
In Texas v. Johnsonthe Supreme Court docket reversed Johnson’s conviction. “If there’s a bedrock precept underlying the First Modification, it’s that the federal government could not prohibit the expression of an thought just because society finds the thought 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 Conflict II veteran who had been visibly upset throughout oral argument. The dissenters maintained that burning a flag is an “inarticulate grunt” moderately 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 Court docket’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 residence 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 equivalent to Laurence Tribe of Harvard and Geoffrey Stone of the College of Chicago argued {that a} regulation prohibiting the act could be constitutional if it had been written to ban any desecration of the flag—not simply the sort that offended onlookers—as a result of it will 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 Social gathering members vowed to interrupt the regulation at 12:01 a.m. on the day it went into impact as a way 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 individuals in Seattle pulled down the flag flying over a post-office constructing and set it alight. Johnson awoke to be taught that the Seattleites had been arrested and charged beneath the brand new regulation. To not be disregarded, he and his crew booked a practice to Washington, D.C., the place they burned flags on the steps of the Capitol. As that they had hoped, they obtained arrested.
The subsequent day, the prosecutor introduced in courtroom that the USA could be charging three of Johnson’s associates with violating the brand new regulation, however not Johnson himself. (A disenchanted Johnson objected that this was “selective non-prosecution,” however the prosecutor later instructed me that Johnson had didn’t get his flag lit.) The case rapidly got here earlier than the Supreme Court docket, which reaffirmed the Texas v. Johnson resolution lower than a yr after issuing it.
Within the follow-up case, United States v. Eichmanthe 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 Court docket reasoned that the flag is firstly an emblem, not only a bodily object. The one means that desecrating an emblem may undermine nationwide unity, it reasoned, is by advantage of what the act communicates. And because the Court docket 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 move a constitutional modification that may 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 had been to burn a flag to incite violence or insult somebody in such a means as to trigger a struggle to interrupt out, the order notes, the fire-setter could possibly 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 supposed to supply imminent violence, and that it was more likely to have its supposed impact. That normal is sort of by no means met, and to my data, no flag-burner has ever certified. As for “combating phrases,” no federal regulation prohibits them.
The manager order additionally threatens to revoke visas and search the elimination 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 individuals in the USA, deporting a international nationwide for flag-burning could be simply as unconstitutional as jailing Johnson for doing so was.
Moreover, the order invitations Legal professional Basic Pam Bondi to “pursue litigation to make clear the scope of the First Modification exceptions on this space.” It’s unclear how she would try this, as any prosecution could be useless on arrival. However in any occasion, the Supreme Court docket could be most unlikely to rethink the “bedrock precept” Texas v. Johnson introduced. The Court docket has repeatedly cited the case with approval. And though at present’s justices are usually extra conservative than had been the justices of 35 years in the past, additionally they have a extra sturdy view of the First Modification.
For all its fanfare, then, Trump’s order is at finest an empty risk to flag-burners, and should even give them ammunition to keep away from punishment. It has already spawned a minimum of one flag-burning, and can virtually definitely result in extra. However it would do nothing to increase 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.
