In the advertising world, there is an old adage that there are times when you take a pitch and “run it up the flagpole and see who salutes.” That expression came to mind yesterday when President Donald Trump signed an order to punish flag burning. The President may be hoping that the Supreme Court might salute and reverse long-standing precedent declaring flag burning to be protected speech under the First Amendment. If so, he is likely to be disappointed. The proposed prosecutions would be unconstitutional and, absent an unlikely major reversal of prior precedent by the Court, flag burning will remain a protected form of free speech.
The Supreme Court has repeatedly, and correctly, declared flag desecration to be protected speech in such cases as Texas v. Johnson (1989) and United States v. Eichman (1990). The order seeks to evade those cases by focusing on acts that violate “applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” When such violations occur (such as burning material within public lands or buildings), federal prosecutors would “prioritize the enforcement of … criminal and civil laws” as to “destruction of property laws” or “open burning restrictions.”
The problem is that, while the precursor is content-neutral, the enhancement of the penalty by a year in jail is not. The whole point of the order is that it is content-based and thus unconstitutional.
The order makes the content-based criteria obvious by declaring flag burning as “uniquely offensive and provocative” of “contempt, hostility, and violence against our Nation—the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.”
The test of free speech principles is your willingness to defend speech that you find offensive or grotesque. For most of us, there are few acts more offensive than the burning of the American flag. That is precisely why extremists use those symbols to vent their rage.
That is the line that has been held by the Supreme Court, including conservative icons like Justice Antonin Scalia. Scalia was the fifth vote in the Johnson decision that upheld flag burning in Texas. The majority opinion, written by Justice William Brennan, declared “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Despite the objections from many, Scalia later again voted against a federal law that banned flag burning in Eichman.
Scalia continued to defend his votes in public comments. He stressed that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
He later added:
Yes, if I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.
Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea – “I hate the government,” “the government is unjust,” whatever.
Conservatives have long opposed falsely claimed “neutral” laws that targeted particular viewpoints. For example, in 2014 in McCullen v. Coakley (2014), the Court considered such a challenge to a Massachusetts law establishing 35-foot buffer zone around abortion clinics barring speech activities. The Court unanimously found that it still violated the Constitution. Notably, Scalia only concurred in the judgment while disagreeing with the reasoning of Chief Justice John Roberts in the majority. Scalia viewed the law as content-based and felt that it should have been struck down under the highest burden of strict scrutiny.
Consider the implications of laws enhancing prosecution and penalties for selective speech. A liberal president could seek enhancements for views deemed hate speech or disinformation. Indeed, that is precisely the rationale used in other countries to selective prosecution of certain speech as “provocative,” “offensive,” or fueling violence.
In R.A.V. v. City of St. Paul (1992), the Court struck down an ordinance that focused on fighting words that angered people based on “race, color, creed, religion or gender” as well as specific Nazi symbols.
The majority opinion written by Scalia (and joined by Chief Justice William Rehnquist, Justice Anthony Kennedy, Justice David Souter and Justice Clarence Thomas) held that “the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”
As I discuss in my book, “The Indispensable Right: Free Speech in an Age of Rage, this type of prosecution has swept across Europe where free speech is in a free fall. Europeans yielded to the desire to target particular viewpoints and speech, a move that quickly snowballed into massive censureship and criminalization of speech. That included arresting people praying to themselves near abortion clinics and any protests deemed offensive to various groups. Indeed, some of the most anti-free speech figures in the United States such as Hillary Clinton have supported criminalizing flag burning with other limits on speech.
Flag burners can still be prosecuted for burning material on streets or public property. However, those laws must be neutrally written and neutrally applied. Otherwise, President Trump and others can seek a constitutional amendment to create an exception for flag burning under the First Amendment.
This is never an easy fight for free speech defenders. No one relishes being accused of defending flag burners. However, free speech often demands that we fight for the rights of those we despise or views that we deplore. We do not need the First Amendment to protect popular speech.
Of course, the new order is a fight that the President likely believes that he cannot lose. Even if he loses in court, he is seen as fighting a practice that remains uniformly unpopular with American voters. However, we should focus on defending the rights that define us as Americans. Free speech is the very right that distinguishes us from even close allies, the indispensable and quintessential American right. It would be a tragic irony to protect the symbol of our nation by destroying the core rights that the symbol represents.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of the best-selling “The Indispensable Right: Free Speech in an Age of Rage.”
This column appeared in Fox.com.
Better Idea
BAN Public Unions…the political army of the Democrats!
plenty of REAL crime Democrats do…how about we PROSECUTE THOSE!
And TAKE away the endless flow of money! End Federal Aid to cities, states, non-profits and colleges.
Ban Public Unions, which basically are a quid pro quo circle of TAXPAYER MONEY!
The American flag is a symbol of our “constitutional democratic republic” – that no government official is above the U.S. Constitution.
This symbol also means that the “ends never, never justify unconstitutional means” and every American official from the local police-chief to FBI to CIA to DoD to the president swear an oath of office to never use “unconstitutional” means of achieving any goal. Since the U.S. Constitution is a “wartime” governing charter, designed for war and designed to be followed during war.
No person has desecrated this American flag more than Trump!
“This symbol also means that the “ends never, never justify unconstitutional means” and every American official from the local police-chief to FBI to CIA to DoD to the president swear an oath of office to never use “unconstitutional” means of achieving any goal. Since the U.S. Constitution is a “wartime” governing charter, designed for war and designed to be followed during war.
No person has desecrated this American flag more than Trump!”
You’re delusional. Seriously. Get help.
What if you burn a pride flag?
Summary execution, obviously.
I DK? You get a heavy pounding and a case of Bud Lite?
I agree with Professor Turley. If someone commits a different crime through flag burning, then fine, prosecute them, but not for the message they send. The other crime will depend on the surrounding circumstances. It could be disorderly conduct, malicious destruction of property (if the flag belonged to someone else), arson, etc.
As an aside, I would note that flag-burning protests on US soil have partially given way to protesters burning automobiles and waving Mexican flags, so it doesn’t seem as common as in earlier days. Still, as a matter of principle, the First Amendment should (and will) be upheld in this particular case.
” as a matter of principle, the First Amendment should (and will) be upheld in this particular case.”
Agree. Further, the American flag (along with any other flags), are merely symbols of some underlying principles and/or practices, and attitudes towards such flags should be calibrated and readjusted accordingly. In the case of a 50-star American flag, what exactly is symbolized is very much subject to the interpretation of the beholder: it could represent anything from the Declaration of Independence, to Lincoln’s abrogation of States’ Rights, to the arrest and demonization of J6 protestors. Therefore, one should be somewhat cautious about ascribing motives to someone who might want to symbolically “desecrate” it.
I would add that imo what really accurately represents this nation, its regard for rights and liberties, and the remaining high principles on which it was founded, is the Constitution. Unlike the flag, which has been used numerous times throughout our history to generate patriotic fervor intended to cover abuses of those principles by the Federal government, the Constitution clearly articulates what it stands for.
Why then is use of a racial pejorative a justification for violent retaliation? Does not the flag burning rise to the level of provocation, personal offense, and so-called “fighting words” to this emotional veteran? Perhaps the practical solution to flag burning is a physical beat down by those who are viscerally moved. Or in the most heroic of all acts, the swoop and grab…. see Rick Monday playing centerfield for the Chicago Cubs in Dodgers Stadium on April 25, 1976. How about that.
That swoop & grab is a great reference I didn’t remember, but it’s an easy web search.
I get it. Burning the flag makes my blood boil. Yet, it is the very essence of free speech. The speech you hate the most is the very speech you must protect the most to protect your speech. It is hard and messy to live in a free democracy.
President Trump already knows this and I am willing to bet this is politics at its finest. He is forcing Democrats to defend the very speech average citizens fine so detestable. He is going to lose and he knows it, but he can shake his fist and say I have your back. He is making a statement in opposition that loses in court (as it should) yet wins the rhetoric.
But it’s a dumb game. He is undermining MAGA by undermining the Constitution. Same with his attacks on people’s citizenship. Same with his use of lawfare. These were the kinds of offenses that created MAGA. Now Trump is hypocritically doing what he condemned. And Epstein. Epstein must not be forgotten. Hiding the Epstein files is a pro deep state action.
“Epstein must not be forgotten. Hiding the Epstein files is a pro deep state action.”
Nobody cares about the Democrat scandal that is Epstein anymore. Sorry to break it to you.
*. I haven’t read the opinions of the cases cited in the article. I will.
Flag burning isn’t free speech. It’s an alarm. As a phone ringing says- someone’s calling, say hello or a fire alarm saying get out now! Flag burning is an alarm saying dissolve the union.
Well said.
Uh oh. What will all of the trolls here say now that the Professor is calling out Trump? I thought Turley was a MAGA stooge 🤣
Calling President Trump out? The Professor put on his kid gloves when he penned this article. It’s a gentle and kind disagreement. Just enough to not get in trouble with the President because he will sic his DOJ on him if he went too harsh.
“Calling President Trump out? The Professor put on his kid gloves when he penned this article. It’s a gentle and kind disagreement. Just enough to not get in trouble with the President because he will sic his DOJ on him if he went too harsh.”
You see folks, this is a classic demonstration of something called “projection”. The leftist here knows full well that previous Democrat administrations weaponized the DOJ to attack their ideological opponents in a stunning, unprecedented, and illegal fashion.
It’s obvious you don’t understand what “projection” means.
Oh, so when you take your own beliefs and incorrectly assign them to another party, what do you call that? Tuesday?
My own beliefs? What did I project as my own beliefs? I made an observation and pointed it out. You still don’t seem to understand what “projection” means.
Sounds like you got caught.
sounds like georgie’s new purple anonymous
When Turley submits a video of himself burning the American flag to protest this obvious incursion of free speech, we can agree that the “kid gloves” have come off.
Trump trolls the Democrats into showing their true colors. They can burn the flag or fight endless lawsuits. It may be legal, but it only makes them look anti-American. I love the flag, and when I see Democrats doing that, it reads as hate against who we are.
I don’t think Trump is trolling Democrats. He’s more likely doing this to create a distraction from bigger problems like falling poll numbers and the lackluster performance of the economy.
“I don’t think Trump is trolling Democrats. He’s more likely doing this to create a distraction from bigger problems like falling poll numbers and the lackluster performance of the economy.”
Said without providing any proof. And no, garbage polls from provably wrong pollsters do not count. Trump is doing fine, the economy is growing fine. You need to face up to the reality that your party is a shambles, your positions are terribly unpopular, and there’s a decent chance that it may be a generation before Americans elect another Democrat as president after the last disaster.
“ Trump is doing fine, the economy is growing fine. ”
So prove it. Saying so is not proof according to you.
Well, we’re not in a recession like we were during most of the failed Biden administration. So that’s a start. Why do you Democrats want America to fail?
When were we in a recession during Biden’s term? Biden’s term consisted of consecutive economic growth. Trump’s last term left Biden with a struggling economy. Until it improved under Biden.
Biden’s “economic growth was nothing more than resuming what was suppressed because of Covid, you clown
Absolutely false. The covid crash was mostly reversed before the clown Biden even staggered into the White House. You do remember covid, right? Then, Bidenflation robbed us of positive economic growth for most of his miserable term. They had to redefine the term recession to avoid him getting branded with one. You can’t win this argument, the Biden economy was a disaster. Everyone know it, even Democrats.
The “bidenflation” lasted a very short time. It didn’t become a recession as many predicted. Inflation continued to trend lower throughout his term and now it’s rising again because of Trump’s tariff see-sawing and TACOing.
^^geoergie the yellow anonymous
Moron, Bidenflation ate 40% of everyone’s paycheck. Not everyone is a government employee leech with your automatic COLAs.
And it was a recession by any normal definition. Inflation takes away from growth in the GDP calculation. Seriously, are you the last person on Earth that is actually defending the horrific economic record of Joe Freaking Biden? Even Biden doesn’t defend Biden.
Aww, such wishful thinking. What’s it like to constantly root for America to fail? And you wonder why your party has a 20% approval rating on a good day.
George Svelaz, the proof says otherwise. Start with the ten most important issues. I’ll do number one, and then you can run back to WeHo.
Biden said it was impossible to close the borders.
Trump did so in a matter of weeks.
“Trump did so in a matter of weeks.”
It was more like days.
S. Meyer,
Good one! What a way to own the slow and dumb one!
Are the borders closed S. Meyer? Peolple are still crossing. There were 22,228 crossings this year. That does not say the border has been closed. They are still getting in.
“Are the borders closed S. Meyer? Peolple are still crossing. There were 22,228 crossings this year. That does not say the border has been closed. They are still getting in.”
Moron, under Biden we had those numbers almost EVERY FREAKING DAY!!! Are you seriously trying to claim via some hair splitting that the border isn’t effectively closed, compared to the disaster that was Biden?
Perfection is the evil of good. You are evil.
Biden: 4 years 8-9 milliion
Trump (calculated) 280,000 and will probably end up less.
Along with being evil, you are ignorant.
From President Trump’s EO,
“ Section 1. Purpose. Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength.”
Even that statement is a problem. If the American flag is so sacred and cherished why do we tolerate using it as bikinis, Underwear, coffe cups, even patriotic sex toys? I don’t think the “sacred” part is ever respected.
I agree with Professor Turley on this issue (note to Lin, wink, wink). President Trump floated the idea of banning flag burning recently and then backed off. Now he is bringing it again , why? Most likely because he is looking for a distraction from bigger problems facing his administration.
Professor Turley is right President Trump will not get very far with his EO.
“ Conservatives have long opposed falsely claimed “neutral” laws that targeted particularly speech. For example, in 2014 in McCullen v. Coakley (2014), the Court faced such a challenge to challenge a Massachusetts law establishing 35-foot buffer zone around abortion clinics barring speech activities. The Court unanimously found that it still violated the Constitution.”
That would be a much more interesting discusssion. If a buffer zone is unconstitutional would a “buffer” zone around law enforcement keeping people from recording arrests and police conduct should also be unconstitutional. There have been calls from law enforcement to increase the “buffer” up to 35 ft instead of a reasonable distance where interference is not a factor. With ICE and CBP engaging in questionable violent arrests and detainments the right to record the interactions are being stymied by law enforcement creating bigger and bigger “buffer zones”.
“If the American flag is so sacred and cherished why do we tolerate using it as bikinis, Underwear, coffe cups, even patriotic sex toys?”
They are not flags.
I get what Prez Trump is doing, but just maybe. This issue just isn’t that important.
I don’t agree with the year in jail but burning (or defiling) a flag, or any other object that deserves respect (e.g., a Bible, a Koran, etc.) should result in some recognition that it is an act against the public interest.
Loss of citizenship? Deportation?
” burning (or defiling) a flag, or any other object that deserves respect (e.g., a Bible, a Koran, etc.) should result in some recognition that it is an act against the public interest.
What other speech or speech-analogous actions would you like to see recognized as “against the public interest” and be punishable in that manner? Do you have a list? Or would you like the list to be dynamically adjustable?
Let ’em. And if the ‘arsonist’ happens to catch himself on fire in the process, everyone should remember to point and laugh (and laugh and laugh and laugh).
Long standing precedent cannot be reversed. It can only be overruled.
I don’t know what Trump thinks, but his deportation program seems to be moving along as the Dems weep over Kilmar Armando Ábrego García Garcia*. Ditto for drilling, tariffs, and an assortment of other programs. On the other hand, Trump fires Lisa Cook, talks about annexing Greenland/Canada, flag burning penalties, etc. The Democrats are in a flutter, filling their talk shows with exasperation, marshalling their District judges, cursing his MAGA hat, and whatnot. Are these what may be one day called, “The Trump Distraction Strategy?”
*I marvel at all the Democratic musical talent absorbed in writing love songs for Ábrego Garcia – or whatever talent they have.
Starting a fire without a permit – public safety.
It is so obviously unconstitutional, that I wonder if our cagey president is simply baiting the Democrats in the hopes that they will further alienate themselves from the public by burning flags.
“It is so obviously unconstitutional, that I wonder if our cagey president is simply baiting the Democrats in the hopes that they will further alienate themselves from the public by burning flags.”
Yes. It’s another 80/20 issue that the Dems will reflexively take the losing side of.
bingo!
My favorite X commentator: You just know this flag order is going to result in lots of video of Democrats burning and cheering on the burning of of American flags for future GOP ads.
Sure, a sh*tbag American can burn the flag as protected free speech, but when a foreign national burns our flag while shouting death to Americans, I consider that an act of invasion/war and that foreign enemy should be treated as any invader would be, captured, tried and then shot.
“when a foreign national burns our flag while shouting death to Americans”
But enough about American university campuses.
Agreed. Of course, it’s entirely possible it’s more trolling, they know they’ll lose. It’ll sure whip some people into a lather in the meantime though. How many dem officials are going to start lighting our flag on fire?