The Supreme Court docket and flag burning: an explainer

President Donald Trump needs to prosecute flag burning, however can he make that occur with out violating Supreme Court docket precedent? Trump contends it’s attainable in an Aug. 25 executive order that instructs the legal professional basic to think about litigation that might “make clear the scope of the First Modification exceptions on this space.”

Particularly, Trump’s order places a highlight on the courtroom’s 1989 ruling in Texas v. Johnson, elevating questions on attainable loopholes in that case’s protection of flag desecration underneath the Structure and about whether or not present justices would stand by their predecessors’ conclusions.

Right here’s a quick explainer on free speech, flag burning, and what former Justice Antonin Scalia mentioned he would do about flag desecration if he had been king.  

What does the chief order on flag burning say?

The order, titled Prosecuting Burning of the American Flag, describes the importance of the American flag and why it’s offensive to destroy it. Burning it “could incite violence and riot,” it says, and the pursuit of that end result must be punished.

“However the Supreme Court docket’s rulings on First Modification protections, the Court docket has by no means held that American Flag desecration performed in a fashion that’s more likely to incite imminent lawless motion or that’s an motion amounting to ‘preventing phrases’ is constitutionally protected,” Trump contends.

The order goes on to instruct the legal professional basic to prosecute – utilizing current legal guidelines on property injury, discrimination, hate crimes, and different types of violence – situations of flag burning that trigger “hurt unrelated to expression, per the First Modification.”

The order additionally instructs the legal professional basic, secretary of state, and secretary of homeland safety to “deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and different immigration advantages” every time they decide that “international nationals have engaged in American Flag-desecration exercise underneath circumstances that let the train of such cures pursuant to Federal regulation.”

How did authorized specialists react to the flag burning order?

Trump’s govt order on flag burning was met with immediate pushback. Many authorized specialists mentioned it runs afoul of Supreme Court docket precedent, not simply on flag desecration however on free speech basically.

For instance, Eugene Volokh argued that, though the order doesn’t ban all flag burning, it encourages “selective enforcement” of in any other case impartial legal guidelines concerning public fires and authorities property by telling federal authorities to “prioritize” the enforcement of these legal guidelines in opposition to individuals who desecrate the American flag. Such selective enforcement quantities to illegal focusing on of protected speech, he wrote.

Nevertheless, administration officers had been clearly prepared for criticism. Of their public statements on the order, they’ve emphasised their perception that it’s attainable to prosecute flag burning with out violating free speech protections.

“Thanks for shielding the American flag, and we’ll try this with out operating afoul of the First Modification,” mentioned Legal professional Common Pam Bondi on the signing ceremony for the order.

So, what has the Supreme Court docket mentioned about flag burning?

The Supreme Court docket addressed flag burning within the 1989 case of Texas v. Johnson. A 5-4 majority held that states can’t enact blanket bans on flag desecration as a result of, underneath some circumstances, flag burning is a type of symbolic speech protected by the First Modification.

The case stemmed from a flag burning that came about at an indication in opposition to the Reagan administration throughout the 1984 Republican Nationwide Conference in Dallas. After being handed a flag from one in every of his fellow protesters, Gregory Lee Johnson “doused it with kerosene, and set it on fireplace.” A number of observers reported being “significantly offended” by his conduct, however nobody was harm “or threatened with damage.” Johnson was convicted of violating a Texas regulation concerning the desecration of a honored object, sentenced to at least one yr in jail, and fined $2,000.

Johnson appealed his conviction to the Texas Court docket of Felony Appeals, the state’s highest courtroom for prison instances, which dominated in his favor, holding that the state’s effort to punish Johnson for flag burning violated the First Modification. To attain its acknowledged aim of preserving the peace with out violating free speech protections, the courtroom mentioned, Texas solely wanted to criminalize incidents that really fueled violence, not flag burning basically.

Texas appealed that call to the Supreme Court docket, which in the end affirmed the state courtroom’s determination. The Supreme Court docket’s opinion, launched in June 1989, mentioned that the First Modification protects a wide range of types of expressive conduct, not simply precise speech, and that flag burning can turn out to be one such protected type, because it did in Dallas.

“Johnson burned an American flag as half — certainly, because the end result — of a political demonstration that coincided with the convening of the Republican Occasion and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was each intentional and overwhelmingly obvious,” wrote Justice William Brennan for almost all, which included Scalia.

The truth that flag burning may be protected speech doesn’t imply it all the time is, Brennan added, noting that states retain the facility “to forestall ‘imminent lawless motion.’” The courtroom made it clear, nonetheless, that offending observers is just not the identical factor as selling lawlessness.

In dissent, Chief Justice William Rehnquist rejected the bulk’s interpretation of the First Modification, arguing that Johnson had been punished for what he did to the flag, not for the message he was making an attempt to convey. “For greater than 200 years, the American flag has occupied a singular place because the image of our Nation, a uniqueness that justifies a governmental prohibition in opposition to flag burning,” he wrote.

Congress responded to the Johnson determination by criminalizing flag burning nationwide. The Flag Safety Act of 1989 outlawed mutilation, defacement, and different assaults on the American flag, whereas nonetheless permitting for the disposal of “worn or dirty” flags.

The Supreme Court docket took up a problem to the 1989 regulation and heard arguments on it 11 months after releasing the Johnson determination. In United States v. Eichman, the identical five-justice majority from Johnson once more held that flag burning is usually a protected type of speech, figuring out that prosecuting people who had set fireplace to American flags to protest the Flag Safety Act violated the First Modification.

“[T]he Act nonetheless suffers from the identical elementary flaw: it suppresses expression out of concern for its doubtless communicative affect,” Brennan wrote for the courtroom.

The place does the thought of Scalia as “king” come into this?

These two 5-4 choices didn’t settle the talk on criminalizing flag burning. Over the previous 35 years, Congress has tried several times so as to add an anti-flag burning modification to the Structure, however not one of the proposals received the assist of two-thirds of the Senate, a bar that have to be cleared earlier than a constitutional modification could make it by means of Congress.

Persistent curiosity in banning flag desecration helps clarify why Scalia was typically requested throughout public appearances why he joined the Johnson majority. Excerpts from his responses circulated broadly this week amid the dialogue on Trump’s govt order.

“[I]f I had been king, I’d not permit individuals to go about burning the American flag. Nevertheless, we have now a First Modification, which says that the best of free speech shall not be abridged. And it’s addressed, specifically, to speech crucial of the federal government,” Scalia said throughout a 2012 look on CNN.

He picked up the identical chorus in 2015, throughout one in every of his final public occasions. “If it had been as much as me, I’d put in jail each sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he mentioned, in accordance with the National Constitution Center. “However I’m not king.”

What are the Trump administration’s arguments?

Administration officers are properly conscious of the Supreme Court docket’s previous rulings on flag burning and Scalia’s feedback. They’ve referenced them whereas defending the brand new order.

“Few issues: 1) Antonin Scalia was an ideal Supreme Court docket Justice and a genuinely variety and first rate particular person. 2) The President’s EO is per Texas v. Johnson. 3) Texas v. Johnson was incorrect and William Rehnquist was proper,” wrote Vice President JD Vance on X on Tuesday.

Vance and others in the administration contend that the order is constitutional as a result of it takes intention at solely these acts of flag burning that even the Johnson majority didn’t defend. Particularly, the order is geared toward flag burning “that’s more likely to incite imminent lawless motion” or which quantities to “preventing phrases,” phrases which can be sufficiently offensive to impress a mean particular person to violently retaliate. In Johnson, the courtroom mentioned such expressive conduct is just not entitled to the identical protections as speech that merely causes offense.

However it stays to be seen whether or not it’s attainable to attract clear distinctions between completely different acts of flag burning, classifying some as “preventing phrases” and others as protected types of speech. Within the 1989 case, Texas argued that prosecuting Johnson was a part of preserving the peace, however the courtroom appeared on the identical set of circumstances and mentioned that peace was by no means in danger, since inflicting offense is just not the identical factor as disturbing the peace.

When will this come to a head?

As famous above, Trump’s order doesn’t impose a brand new nationwide ban on flag burning however as an alternative encourages Bondi and others to prosecute flag burners underneath current legal guidelines, corresponding to legal guidelines prohibiting fires in fireplace security zones.

One such regulation, a prohibition on lighting a fireplace in a public park, led to the arrest of a person on Monday who burned an American flag throughout the road from the White Home whereas protesting in opposition to Trump, in accordance with NBC News. The person will nearly definitely use the First Modification to battle the cost as he continues to protest the brand new govt order.

And the Trump administration is unlikely to thoughts that growth. As beforehand famous, administration officers have expressed curiosity in getting the difficulty of flag burning again in entrance of the justices within the hope that they are going to make clear or overturn the courtroom’s earlier rulings.