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.
Per the Coffee and Covid substack, I’ll just leave it here:
“Let’s just end the debate right now. All anyone would have had to do was read Trump’s short executive order about flag burning for themselves.
In English, it directs the Attorney General to prosecute, to the fullest extent possible, existing laws related to flag burning when combined with other crimes “unrelated to expression,” and only where it would be consistent with the First Amendment.
In other words, it was just a nice sentiment, properly decrying flag burning, that only told the AG to uphold the existing laws and also, mind the Constitution. But because the media framed it as some kind of dark, authoritiarian, unconstitutional overreach, even many conservatives ran with that— without checking.
All day yesterday, in post after post, alleged conservatives cried that while they agreed with Trump on everything else, this was too much. I’ll burn any flags I want to! Don’t worry, I won’t embarrass anyone by screen-shotting them into today’s post.”
No, that is not correct. What this executive order demands is that burning a US flag be punished more harshly than the exact same offense that burns something else, for instance a Nazi flag, a Pride flag, or a random piece of cloth. And that is unconstitutional. What’s more, if a prosecutor now throws the book at someone who burns a stolen US flag and starts a wildfire, the courts will PROPERLY assume that the prosecution’s motive is this unconstitutional order, and will forbid the maximum penalty.
“All day yesterday, in post after post, alleged conservatives cried that while they agreed with Trump on everything else, this was too much. I’ll burn any flags I want to! Don’t worry, I won’t embarrass anyone by screen-shotting them into today’s post.”
But, but, but Progressives!!!
😉
Governments seem to have no hesitation in prosecuting people who do a burnout on gay pride flags painted on streets. What’s the difference?
Only the burnout, technically.
Oh, no, that can be prosecuted as a “hate crime”. When demand for hate crimes exceeds supply, counterfeits will emerge (cf. Jessie Smollett).
There’s nothing counterfeit about the crime of vandalizing public property. And if a jury finds that it was motivated by hatred on certain bases, then it is indeed a hate crime and the sentence should be enhanced.
The difference is obvious. The criminals in that case were guilty of vandalizing public property. It made absolutely no difference what was painted on the street; if the city decides to paint something on its street you have no right to destroy it. Drive on it as normal. If you have to make an emergency stop, make it. But deliberately marking it is a crime, whether it’s a rainbow, a US flag, a slogan, or anything else.
One of the reasons that, as a conservative, I have always been skeptical of Trump is his desire to impose governmental solutions on everything. Conservative authoritarianism is better in the short run than leftist authoritarianism, but in the long run we just continue to condition Americans to be dictated to by govt, and establish precedents that the Dems will gleefully use against us the next time they have control.
gary
Did you forget the last 4 years????
It is hard to get more American than watching Leonard Bernstein conduct the New York Philharmonic and play the piano at the same time, in a performance of George Gershwin’s Rhapsody in Blue. The year was 1976 when most Americans were deeply patriotic.
🇺🇸
This EO is clearly opposed to precedent, although I share it indignation concerning flag symbolism. As a Trump supporter, in general, I think his time is too valuable to be spent attacking no-win causes or worrying about the interior design of the WH, regardless of who pays for it. After a while it becomes embarrassing. Make America Great Again by spending time on great causes. Complain about flag or monument desecration and invite the Dems to join in. They won’t, but that will reveal them as the hypocrites they are rather than the protectors of democracy they claim to be. Bill Hill, Salem VA
I wish They’d bring back Burning the Bra. I like that natural look.
Although now a days They’re going completely Au Natural, like Darren’s honey Brittney Spears.
Burn a Flag, Burn a Bra, it’s all right, pretty soon We won’t be able to afford either.
We’ll all be walking around like Brittney Spears!
https://www.mandatory.com/news/1655317-britney-spears-nude-photo-cowboy-boots-instagram
NOTE:
Darren you missed your chances with Taylor Swift, she got engaged to Travis today.
https://www.foxnews.com/politics/trump-reacts-taylor-swift-travis-kelce-engagement-high-profile-cabinet-meeting
Ya Know … She might be crazy, but Britney standing Buck Naked screams Darren come rescue Me!!!
We’ve had several years to observe Trump’s behavior, and this seems an obvious manipulation to get the Democrats and leftists to publicly protest probably including frequent burning of flags, which would predictably increase Trump’s vote going into the midterms. This is not unlike Trump’s using the National Guard to go into DC for clean crime up and loudly proclaiming an intention to proceed next to Chicago etc. The effect is to trap the Democrats solidly in the voting public’s mind as pro crime, or pro burning the flag, or pro illegal immigration, etc.
My take is it was a PR move but waste of time. If the flag burner violates some burn ordinance or intentionally incites riot, then a prosecution may result anyway. The Administration and President have a lot bigger problems to deal with. Granted I think that folks are a little more ticked off at the recent flag burning when the protesters are carrying foreign flags and have little, if any loyalty, to our country.
So, burning the American flag with the place and intent to incite American civil liberties unburdened (i.e. mass abortion) would be an illicit Choice… uh, choice. Rational.
In the context of constitutional freedom of speech, what precisely is the difference between burning the flag and using the n-word?
“In the context of constitutional freedom of speech, what precisely is the difference between burning the flag and using the n-word?”
*****************************
For me, the flag burning is regulatable conduct and the use of the word is nonregulatable speech. Try throwing blood on the Lincolm Memorial in some msguided attempt at “free speech” to find out the difference.
I vigorously oppose the burning of the American flag.
Presumably, other people vigorously oppose the use of the n-word.
Seems to be a standoff at a minimum.
No, mespo, that is not a valid distinction. Flag-burning is speech, and cannot be regulated as such. But it’s subject to all the usual laws, such as the fire code and the laws against burning other people’s property. And that’s why you can throw water at the Lincoln Memorial, but not blood. Because the memorial doesn’t belong to you. If you were to purchase it from the USA first, then you would be free to do whatever you liked with it.
Flag burning is only speech beacuse SCOTUS says it is – now. The Founders didn’t say “expressive conduct” though they certainly could have done so. So I’d go with the plain meaning of the words.
I don’t see any. Both are reprehensible and anyone who does so should be shunned.
Nothing. There is no difference. You are free to use the N-word any time you like, and no government entity can penalize you for it in any way at all. But you can’t shout it through a megaphone, on a residential street, at three in the morning. You can only use it in the same way that you can say “God Bless America”.
And the same is true for flag burning. You are free to burn a US flag only in the same circumstances that you can burn a bra, or a book, or any other item. It must belong to you, and it must comply with the fire code.
PROF. TURLEY…………..perhaps it’s time to re-examine this whole concept of burning the flag and ‘free speech…’ as Thomas Jefferson said – paraphrasing what is carved inside the Jefferson memorial, words which have left a lasting impression on me – ‘a man can no longer wear the jacket he had as a boy when he is grown…’ re: holding onto outdated concepts! …and perhaps this is one jacket that needs to be altered to fit our more evolved consciousness….. i.e., the old: ‘burning the flag a form of expression’ jacket………really? or is it a virtual attack upon the USA, made with the same intent to bring on destruction as much as any real fired missile…??????? Where is the line drawn on what is ‘free speech’ and what is an actual attack with the intent to destroy (virtual or real) against our Country? When does the Ivory Tower debate cross over into what it really means to burn the flag in our real world today.. Terrorist attack stage 1. ???????
There is no such thing as a “virtual attack”, or “virtual destruction”. Burning the flag expresses a desire to burn the country, and you have every right to express such a desire. That’s what the first amendment is for.
*. Time, place, manner considered. Burning is a manner. Ban burning in general as a manner of speech. Flames can be seen from a distance as in KKK crosses. Burning an effigy is another. Place can be not within x number of feet of a wooden structure, vegetation etc. Peaceable assembly excludes indoor BBQ.
Could be any Burning of anything as a manner of speech. Burn a Ford pick up on or near the capitol mall to express climate change?
Sure
*. Flag rules include burning a flag that has touched the ground or is dropped when running it up or down or is tattered or worn. Literal meaning of burning a flag is disgrace. The flag is disgraced by x and I must burn it.
It’s not really speech and I don’t see the word expression used. Someone penciled in expression in marginalia. Madison or Jefferson I guess.
If the flag is disgraced you must burn it in private.
Content- and value-neutral laws do apply to flag-burning. If you violate the fire code you will be charged, no matter what it is that you are burning. But you can’t be punished more harshly just because it’s a US flag.
“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.”
**********************************
Old Brennan had it wrong and, as so often the case, Justice Stevens ( who was no conservative by this time), had it right, in dissent in Texas v. Johnson:
Nor does the statute violate “the government’s paramount obligation of neutrality in its regulation of protected communication.” Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 70 (1976) (plurality opinion). The content of respondent’s message has no relevance whatsoever to the case. The concept of “desecration” does not turn on the substance of the message the actor intends to convey, but rather on whether those who view the act will take serious offense. Accordingly, one intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others — perhaps simply because they misperceive the intended message — will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses. Thus, this is not a case in which the fact that “it is the speaker’s opinion that gives offense” provides a special “reason for according it constitutional protection,” FCC v. Pacifica Foundation, 438 U. S. 726, 438 U. S. 745 (1978) (plurality opinion). The case has nothing to do with “disagreeable ideas,” see ante at 491 U. S. 409. It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.
The Court is therefore quite wrong in blandly asserting that respondent “was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.” Ante at 491 U. S. 411. Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spraypaint — or perhaps convey with a motion picture projector — his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag. * (491 U. S. at 438-9)
The landmark decision was 5 in favor and 4 opposed.
I disagree with the 1989 4:5 SC ruling, I look at desecration of our flag about the same way I look at Maplethorpe’s piss Christ or Hunter Biden’s poo painting as being art.
It will be interesting to see if the President’s EO thought process regarding precipitating another crime as a result of the flag burning will survive the Courts. My guess is it won’t, but I applaud his efforts!
If the courts rule against the EO what does that say about the old SCOTUS analogy about falsely yelling FIRE in a crowded theater which is commonly known as the ‘clear and present danger test’. Subsequently, the court tightened that up by replacing it with the ‘immenent and lawless action’ test. Either way SCOTUS ruled that free speech has limits especially when the action can result in harm to persons or property. It will be interesting to see if SCOTUS can throw out its previous rulings.
It is impossible for burning a flag (in a fire-safe manner) to result in harm to persons or property.
If so-called “patriots” respond with violence then that is THEIR crime, and it is perverse and unconstitutional to blame their victims and punish them for the thugs’ crime. That is a hecklers’ veto, and if you allow it then you have justified banning the Mohammed cartoons, because they too provoke criminal thugs to violence.
The line about “falsely crying fire in a theater” comes from Schenck, which has been thoroughly rejected and discredited, and is not law at all. It was a disgusting and horrible decision, from a disgraceful era of US history, and those who cite it should know better.
Sorry, pal, but Brandenburg et seq only REFINED the Schenk ruling to also include motive to result in imminent lawless danger. olesmithy is correct here. are you a lawyer?
Agree.
Poor Millhouse fails to understand that Justice Holmes’ phrase was dictum, not part of any decision. Does Millhouse know what dictum is? Brandenburg clarified that such an example (“Fire!”) would need more than that to fall outside of 1A–it would require a conscious directing toward inciting and actually likely to incite “imminent danger.”
Trump’s flag burning executive order (EO) explicitly notes that SCOTUS has ruled that flag burning is protected speech under the 1st Amendment. However, the EO says that SCOTUS did not address or rule that flag burning is protected if it precipitates unlawful actions or would likely do so. The EO cannot be dismissed simply with a free speech argument as there are a few more twists and turns that have to be considered.
If you happen to violate the law while also burning a flag, then you are likely to be prosecuted for violating the law — but not for burning a flag. The flag-burning adds nothing to the otherwise unlawful behavior, and flag-burning cannot in itself convert lawful behavior into unlawful behavior.
The only purpose of the EO is to drum up support from his base.
“The only purpose of the EO is to drum up support from his base.”
Democrats of course would never do anything so crass.
Or to drum up support for flag burning from libtards
True dat
conFLAGration
Not bad.
more like unseemly presidential FLAGulence
“more like unseemly presidential FLAGulence”
That only works if you can’t spell, Gigi. Whoops, more proof that you’re retarded.
… this guy doesn’t know the fancy word for fart…
Darren—–I “salute” your ability to interject exquisite punmanship, at any time, and anywhere.
Patriotic President Donald J. Trump makes the distinction between Americans and anti-American, communist (liberal, progressive, socialist, democrat, RINO, AINO), direct and mortal enemies of the United States clear.
Patriotic? How does one define “patriotic”? Here are a few ideas: 1. don’t dodge the draft by lying about nonexistent bone spurs; 2. don’t call members of the military “suckers and losers”; 3. don’t refuse to go to a ceremony honoring fallen heroes because it is misting out and you are afraid it will muss up your pompadour and expose your baldness; 4. don’t diss a genuine American hero because his bomber got shot down while on a mission and he was taken POW–I’m talking about John McCain; 5. don’t pander to people who really ARE patriots by writing up nonbinding Executive Orders pretending to protect the American flag you refused to serve under, when you are guilty of 1-4; 6. don’t lie about losing a free and fair election when you KNOW you don’t have any evidence; 7. don’t make up and spread lies about nonexistent voter fraud, mail-in ballot fraud (when you, yourself, voted by mail); 8. don’t send an angry mob of people who believed your lies to the Capitol building to try to stop the rightful election winner from taking office; 9. don’t sit idly by for over 3 hours watching your supporters batter police officers, smash doors and windows and trash the Capitol while hunting for the VP because he refused to disobey the law; 10. don’t lie to people worried about the increasing cost of groceries by falsely promising an immediate and preciptious drop in the cost of food when you had no ability to keep this promise; 11. don’t steal classified documents, lie about returning them, keep some and then make up a lie about “mentally declassifying” them; 12. don’t promise to release the Epstein file and then renege after you found out that there’s plenty of things in the file about you; on this note, don’t waste the resources of the FBI to have them sanitize the file of references to you and your conduct; 13. don’t refuse to follow court orders, insult and disrespect judges, prosecutors, members of Congress, members of the bar, or colleges and universities when you don’t like what they say about you; 14. don’t threaten to pull the FCC broadcast licenses of mainstream media, or harass or try to intimidate entertainers or TV hosts because you don’t like what they say about you; 15. don’t try to circumvent the Constitution by trying to deny citizenship to persons born in America, by violating the Posse Comitatus Act by sending unwanted troops to cities with Democrat mayors to try to intimidate them and show off your perceived superior power–all by lying about nonexistent crises when you KNOW that crime is down and is worse in red cities in states like Louisiana; 16. don’t treat the FBI and DOJ as your personal private investigators and law firm, using these citizen-funded resources to get vengeance on perceived enemies; 16. don’t threaten to fire people you have no authority to fire, like the head of the Federal Reserve or members of the Board. The Federal Reserve was established with an independent board to be free of politics–to prevent a politician from ,manipulating our economy for pollitical gain.
These are just a few examples off the top of my head, but they all relate to the topic of patriotism.
You need a psychiatrist to deal with your insane Trump obsession.
Spoken by a clown that had no problem with Biden lying and dodging the draft by using his non-existent asthma as the excuse.
https://substackcdn.com/image/fetch/$s_!P-6U!,w_1456,c_limit,f_webp,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F748c2f6d-329c-450e-9691-dc6f48eb6330_1010x920.png
Double dip: I’m almost sure this is just a stratagem to get unhinged leftists to start lighting American flags on fire for the optics, and they will, because they are stupid. All that most people will remember is leftists lighting flags on fire. Really: if the modern left had something to say or offer it might matter. Since they don’t, we will just watch them burn flags, shrug, and move on as the actual adults we are. The best method for dealing with the modern left is to treat them like teenagers, because emotionally and intellectually – they are. I would not put a teenager from any time in charge of anything consequential. That is not bias, just wisdom. and the entire modern DNC are basically 14 in those terms, regardless of biological age.
All that most people will remember is leftists lighting flags on fire.
They may also remember the leftist protesters setting cars on fire in Los Angeles and waving Mexican flags, all while throwing bricks and concrete at the police.
OldManFromKS,
And Democrat politicians who would not do anything to assist the LEOs.
Yes, waving Mexican flags. What a dangerous thing to do!
First Amendment much?
“Yes, waving Mexican flags. What a dangerous thing to do!
First Amendment much?”
I encourage all Democrats to go out and protest by waving Mexican flags. Each time they get caught on the news doing this, it’s probably good for another House seat for the Republicans.
That’s a typical brain-dead reaction from a leftist. Nobody said anything about prosecuting or censoring the Mexican flag wavers.
You’re correct in your description of today’s democrat party …… paid/sponsored protestors with hidden NGO sources. I have always viewed the hysterically-emotional reactions of democrat-voters as adolescent, and their total lack of honesty or accountability matches that assessment. Great comment sir.
Fantastic essay/article/column 👍👍👍Hit the FREE 🆓 🆓 🆓 Speech home run 🏆🏆😁
If we take away the Woke MEDIA ATTENTION, these problems will go away. Man arrested this morning for flag burning in front of White House. Arrested for starting fire in a federal park, ha ha!
These idiots just want the attention!!!!!!
https://www.msn.com/en-us/news/us/vet-arrested-after-burning-a-flag-at-the-white-house-to-protest-trump-s-order/ar-AA1LfFYy?ocid=winp2fptaskbarhover&cvid=f06762e4d4a840279ec07f4e0ab48775&ei=10
maybe he can sell the leftover accelerant and use the money to get a shave and haircut. maybe get his front toof fixed.
Ya, time, PLACE, manner. Burning is questionable manner in general. He should have shredded it with scissors. Have a bank of anti US protesters sitting, cutting up flags. That’d be unhinged.
The mobs dancing around a bonfire throwing flags in it. Clean up? Burn permit?
*. I don’t think burning is speech nor phones ringing, nor fire alarms, nor sirens, nor gun shots nor banging on pots and pans. Chaining to trees nor bridges nor any other expression involving conduct or behavior. I don’t think parades nor picketing nor any of it is freedom of speech.
Time, place and manner is just another matrix. It’s a graffiti world, tik tok, world. It’s Obama’s world. What a failure 😂.