Flag Burning and the First Amendment – the Knotty Issues Courts Will Have to Untangle in the Wake of Trump’s Executive Order

​When President Trump issued an executive order directing the attorney general to prosecute those who burn American flags, it struck many as a snub of the U.S. Supreme Court. Did the president’s order fly in the face of a 1989 Supreme Court opinion, Texas v. Johnson, holding that flag-burning is protected by the First Amendment?

“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents,” wrote Justice William Brennan for the 5-4 majority in that case.

Even Justice Antonin Scalia, known for conservative social views, gave the majority its decisive swing vote. He later said that if he were king, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Justice Scalia put his understanding of the Constitution before his personal preferences.

President Trump’s executive order seems to ignore this clear precedent, putting emotion above legal logic. The president wrote that desecrating the flag “is uniquely offensive and provocative.”

And it is.

The Executive Order and the Boundaries of the Law
But the First Amendment does not allow speech to be outlawed simply because it is offensive or provocative. There are other, more complex issues for the courts to consider in this executive order. The president took pains to expand enforcement while purporting to acknowledge the boundaries of the law.

Consider two distinctions in the president’s executive order.

• First, the order directs the attorney general to rely on existing national criminal and civil laws that are “content neutral” and focus on harms “unrelated to expression.”

 

• Second, it targets burning this “representation of America” in a way that may “incite violence and riot.” The president specifically singled out flag burning by “groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.” The executive order also notes that the Supreme Court has never extended constitutional protection to “fighting words” that are “likely to incite imminent lawless action.”

This seems an attempt to build on the 2003 Supreme Court ruling in Virginia v. Black, which affirmed the right of Virginia to ban cross burning when it is done with the intent to intimidate. Writing for the majority, Justice Sandra Day O’Connor noted the long history of “whipping, threatening, and murdering” associated with burning crosses.

From this history, she concluded:

• “The protections the First Amendment affords speech and expressive conduct are not absolute … Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

The Trump executive order attempts to predicate action against flag burners on this principle. But does every instance of flag-burning place specific Americans in fear of bodily harm or death? Is that reasonable, or too much of a stretch? It is one thing to burn a cross on a particular person’s front lawn, quite another to burn a flag as part of a mass protest against the government rather than against individual Americans.

Is the Executive Order Content Neutral?
Similar principles apply to the directive to use “content-neutral” laws relating to harms unrelated to expression. While content-neutral enforcement of laws against burning things in public places would of course be reasonable, the executive order specifically directs a content and viewpoint-based enforcement against burning American flags. That is hardly content neutral, and the order makes clear that the harm it goes after is exactly based on the expressive content of the act of burning an American flag, not any concern with fire safety. If the executive order does not include enforcement on burning the flags of other countries, it is by definition not content neutral.

Courts will have to decide whether a viewpoint-based directive to selectively enforce otherwise permissible laws can end-run existing precedent on flag burning. This being America, within hours of the executive order’s release, a man torched an American flag across the street from the White House. He was arrested, but not for burning the flag. He was arrested for starting a fire in Lafayette Park.

That seems reasonable to us. Starting fires is illegal in most public places, and is not exactly the safest activity. Would the police plan to be equally diligent against flammable conduct the president likes – perhaps a pardoned January 6th protester burning a picture of the J6 Committee in effigy?
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There may be specific instances in which flag burning poses a threat of imminent violence. Attaching such a threat to all flag burning could, however, be just a means of punishing the expression by imposing the costs of arrest and defense, regardless of the merits of the charge.

​In the meantime, we point to the words of Justice Anthony Kennedy, who wrote in a 2003 concurring opinion: “It is poignant but fundamental that the flag protects those who hold it in contempt.”

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