The Supreme Court 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 potential in an Aug. 25 government order that instructs the legal professional basic to contemplate litigation that will “make clear the scope of the First Modification exceptions on this space.”

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

Right here’s a short explainer on free speech, flag burning, and what former Justice Antonin Scalia stated he would do about flag desecration if he have 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 consequence ought to 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 carried out in a fashion that’s prone 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 harm, discrimination, hate crimes, and different types of violence – cases of flag burning that trigger “hurt unrelated to expression, in step with 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 “overseas nationals have engaged in American Flag-desecration exercise below circumstances that let the train of such treatments pursuant to Federal legislation.”

How did authorized specialists react to the flag burning order?

Trump’s government order on flag burning was met with fast pushback. Many authorized specialists stated 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 relating to public fires and authorities property by telling federal authorities to “prioritize” the enforcement of these legal guidelines towards individuals who desecrate the American flag. Such selective enforcement quantities to illegal concentrating on of protected speech, he wrote.

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

“Thanks for safeguarding the American flag, and we’ll try this with out working afoul of the First Modification,” stated Lawyer Basic Pam Bondi on the signing ceremony for the order.

So, what has the Supreme Court docket stated 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 not enact blanket bans on flag desecration as a result of, below 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 illustration towards the Reagan administration through the 1984 Republican Nationwide Conference in Dallas. After being handed a flag from considered one 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 harm.” Johnson was convicted of violating a Texas legislation relating to the desecration of a honored object, sentenced to at least one 12 months in jail, and fined $2,000.

Johnson appealed his conviction to the Texas Court docket of Prison Appeals, the state’s highest court docket for felony circumstances, which dominated in his favor, holding that the state’s effort to punish Johnson for flag burning violated the First Modification. To realize its said objective of retaining the peace with out violating free speech protections, the court docket stated, Texas solely wanted to criminalize incidents that actually fueled violence, not flag burning basically.

Texas appealed that call to the Supreme Court docket, which finally affirmed the state court docket’s choice. The Supreme Court docket’s opinion, launched in June 1989, stated that the First Modification protects a wide range of types of expressive conduct, not simply precise speech, and that flag burning can develop into one such protected type, because it did in Dallas.

“Johnson burned an American flag as half — certainly, because the fruits — of a political demonstration that coincided with the convening of the Republican Get together 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 will be protected speech doesn’t imply it at all times is, Brennan added, noting that states retain the facility “to stop ‘imminent lawless motion.’” The court docket made it clear, nonetheless, that offending observers will not be 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 attempting 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 towards flag burning,” he wrote.

Congress responded to the Johnson choice 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 legislation and heard arguments on it 11 months after releasing the Johnson choice. In United States v. Eichman, the identical five-justice majority from Johnson once more held that flag burning generally is 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 basic flaw: it suppresses expression out of concern for its probably communicative affect,” Brennan wrote for the court docket.

The place does the concept 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 a number of occasions so as to add an anti-flag burning modification to the Structure, however not one of the proposals bought the assist of two-thirds of the Senate, a bar that have to be cleared earlier than a constitutional modification could make it via 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 government order.

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

He picked up the identical chorus in 2015, throughout considered one of his final public occasions. “If it have been as much as me, I might put in jail each sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he stated, based on the Nationwide Structure Middle. “However I’m not king.”

What are the Trump administration’s arguments?

Administration officers are effectively 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 important Supreme Court docket Justice and a genuinely sort and respectable particular person. 2) The President’s EO is in step with Texas v. Johnson. 3) Texas v. Johnson was flawed and William Rehnquist was proper,” wrote Vice President JD Vance on X on Tuesday.

Vance and others within the administration contend that the order is constitutional as a result of it takes goal at solely these acts of flag burning that even the Johnson majority didn’t defend. Particularly, the order is aimed toward flag burning “that’s prone to incite imminent lawless motion” or which quantities to “preventing phrases,” phrases which might be sufficiently offensive to impress a median particular person to violently retaliate. In Johnson, the court docket stated such expressive conduct will not be entitled to the identical protections as speech that merely causes offense.

However it stays to be seen whether or not it’s potential 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 retaining the peace, however the court docket regarded on the similar set of circumstances and stated that peace was by no means in danger, since inflicting offense will not be 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 below current legal guidelines, comparable to legal guidelines prohibiting fires in fireplace security zones.

One such legislation, 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 towards Trump, based on NBC Information. The person will nearly definitely use the First Modification to battle the cost as he continues to protest the brand new government order.

And the Trump administration is unlikely to thoughts that improvement. 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 may make clear or overturn the court docket’s earlier rulings.