Though flag-burning has by no means been standard 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 in opposition to our Nation.” The order directs federal officers to prosecute flag-burners at any time when 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 Heart for Constitutional Rights, I represented the defendants in each instances, working below the civil-rights lawyer 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 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 may additionally hand flag-burners a authorized protection within the uncommon scenario after they would possibly in any other case be prosecuted.
The order notes, accurately, that flag-burners may very well be charged for violating normal, “content-neutral” prohibitions on public burning, which serve environmental or public-safety pursuits, regardless 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 sort in D.C.’s Lafayette Park.
However Trump’s order could make even these sorts of prosecutions tougher. The order proclaims that Trump seeks to make use of content-neutral legal guidelines, that are agnostic in regards to 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 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 legislation—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 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 Celebration, Johnson burned a flag on the 1984 Republican Nationwide Conference, in Dallas, chanting “America, the purple, white, and blue, we spit on you.” He was convicted below a Texas statute that made it against the law to burn or in any other case desecrate the flag “in a approach 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 standard approach to eliminate an outdated flag is to burn it. Nobody desires to prosecute the Boy Scouts for correctly retiring the Stars and Stripes.) Certain sufficient, no less than some onlookers testified that they had been significantly offended.
In Texas v. Johnsonthe Supreme Courtroom 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 Warfare II veteran who had been visibly upset throughout oral argument. The dissenters maintained that burning a flag is an “inarticulate grunt” relatively 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 residence for the Fourth of July. Republicans needed 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 legislation over amending the Structure. Liberal constitutional students reminiscent of Laurence Tribe of Harvard and Geoffrey Stone of the College of Chicago argued {that a} legislation 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 a number of other of his fellow Revolutionary Communist Celebration members vowed to interrupt the legislation at 12:01 a.m. on the day it went into impact with the intention 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 below the brand new legislation. To not be omitted, 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 bought arrested.
The subsequent day, the prosecutor introduced in courtroom that the US could be charging three of Johnson’s associates with violating the brand new legislation, however not Johnson himself. (A dissatisfied 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 shortly got here earlier than the Supreme Courtroom, which reaffirmed the Texas v. Johnson resolution lower than a 12 months after issuing it.
Within the follow-up case, United States v. Eichmanthe prosecution argued that the federal legislation 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 in the beginning an emblem, not only a bodily object. The one approach that desecrating an emblem may undermine nationwide unity, it reasoned, is by advantage of what the act communicates. And because the Courtroom had said a 12 months 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 cross 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, nonetheless, 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 approach as to trigger a combat to interrupt out, the order notes, the fire-setter may very well be punished—not for desecration however for both incitement or “preventing phrases.” The take a look at for incitement, nonetheless, is extraordinarily demanding: Even speech expressly urging violence is protected except the federal government proves that it was meant to supply imminent violence, and that it was more likely to have its meant impact. That customary is nearly by no means met, and to my information, no flag-burner has ever certified. As for “preventing phrases,” no federal legislation prohibits them.
The manager order additionally threatens to revoke visas and search the elimination of foreigners who burn American flags. However no legislation identifies flag-burning as a foundation for denying a visa or deporting anybody. And since the First Modification protects all folks in the US, deporting a international 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 lifeless 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 regardless that immediately’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 greatest an empty menace to flag-burners, and will even give them ammunition to keep away from punishment. It has already spawned no less than one flag-burning, and can virtually actually result in extra. However it is going to do nothing to increase the federal government’s energy to punish those that burn the flag. And that’s correctly. In a free nation, one is simply as free to burn the flag as to wave it.
