On Monday, President Donald Trump signed an order that did something we rarely see… he upset people on both sides of the aisle.
The order, “PROSECUTING BURNING OF THE AMERICAN FLAG,” has been deemed a threat to free speech by both Democrats and Republicans alike.
I have seen a lot of pushback on this, as well as some major misinformation, so I wanted to take a second to provide some real background as well as my two cents on the order.
The 1989 U.S. Supreme Court ruling in Texas v. Johnson clearly establishes that the burning of the American Flag in protest is protected free speech.
The incident at issue in the case took place in 1984, when Gregory Johnson burned the American Flag in Dallas, Texas, to protest Ronald Reagan.
The Court ruled 5-4 in favor of Johnson, considering the burning of the flag to be “symbolic” speech and therefore protected under the First Amendment.
This has always been a sore spot for patriotic Americans, but we have always respected the Court’s ruling, even defending the action while personally despising it.
Trump’s order has some tricky language, which attempts to limit the scope of what can and cannot be prosecuted, but after reviewing the wording, it appears that effort may prove unsuccessful.
For instance, the order states, “The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.”
It continues, “This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.”
The “not limited to” is something that people who are defending the order seem to have missed. While the order is focusing on acts of flag burning that incite violence as those ripe for prosecution, that language does not limit it to such conduct. This is why we are seeing a considerable number of conservatives push back against the order.
Defending freedom is a difficult task because you sometimes have to defend decisions and actions that you do not always like, and that is the case here for conservatives.
Seeing the American Flag set on fire is sickening to me, but it is a form of protected free speech, as has been established by the Supreme Court.
I completely understand Trump’s intention in issuing this order, but the language itself, given Supreme Court precedent, is unconstitutional. Now, do I think this situation is the constitutional crisis some are making it out to be? Absolutely not, but it does again play into the hands of Democrats who are pushing the notion of Trump as an authoritarian.
To be blunt, I don’t support the order, and I think this was more of a headline grab for Trump than anything else, as he has to know that he will lose this battle when it goes before the Supreme Court. There is no way Chief Justice John Roberts will support this, and I suspect at least one of the Trump-appointed justices will cross over with him, if not all of them. That is an even bigger problem for Trump, as it will give more credence to the narrative that Democrats want to use against him and Republicans in the upcoming cycle. My opinion… this was a mistake.
