What to Make of President Trump’s Executive Order on Flag Burning

In 1989 and 1990, in Texas v. Johnson and U.S. v. Eichman, respectively, the U.S. Supreme Courtroom struck down, as violative of the First Modification, stand-alone legal guidelines from Texas and Congress that made it against the law to desecrate the U.S. flag. As with many culture-war authorized precedents that had appeared well-settled, President Donald Trump has stirred the pot; final week he issued an govt order entitled “Prosecuting Burning of the American Flag,” which directs the U.S. Division of Justice to:

prioritize the enforcement to the fullest extent attainable of our Nation’s felony and civil legal guidelines towards acts of American Flag desecration that violate relevant, content-neutral legal guidelines, whereas inflicting hurt unrelated to expression, per the First Modification. This may increasingly embody, however isn’t restricted to, violent crimes; hate crimes, unlawful discrimination towards Americans, or different violations of People’ civil rights; and crimes towards property and the peace, in addition to conspiracies and makes an attempt to violate, and aiding and abetting others to violate, such legal guidelines.

The Govt Order goes on, in an analogous (and maybe repetitive) vein to direct the Lawyer Basic to “vigorously prosecute . . . [t]o the utmost extent permitted by the Structure . . . those that violate our legal guidelines in ways in which contain desecrating the American Flag. . . .”

Many commentators and analysts have construed the Govt Order’s language excerpted above as not elevating any constitutional conflicts because the admonitions to the DOJ are restricted by the “to the fullest extent attainable” and “to the utmost extent permitted by the Structure” language, phrases seemingly chosen to respect, and avoid violating, Johnson and Eichman. That’s, many of us appear to consider that if flag desecration is punished not as a result of it constitutes a violation of regulation throughout the board and in and of itself, however as a result of in a specific state of affairs it constitutes a violation of one other “content-neutral regulation” and “caus[es] hurt unrelated to expression,” then all First Modification issues disappear. For instance, if somebody burns a flag to deliberately and imminently incite lawless conduct by others, then the truth that flag burning per se can’t be punished confers no immunity on the defendant from being punished beneath the extra generic and content-neutral crime of incitement, although the incitement occurs to take the type of flag destruction.

However as our pal and colleague Mike Dorf defined on his weblog, issues aren’t so easy, as a result of Johnson and Eichman aren’t the one related First Modification precedents that have to be weighed. Specifically, Mike highlights the significance of R.A.V. v. Metropolis of St. Paul, the place in 1992 the Courtroom struck down an ordinance that, as interpreted by the Minnesota courts, made it felony to have interaction in “preventing phrases” that trigger resentment on the premise of race, faith or gender. In accordance with the Supreme Courtroom majority, although preventing phrases, like incitement or a real risk, are a type of expression that falls outdoors of First Modification safety, if authorities punishes a subset of preventing phrases primarily based on the subject-matter or viewpoint of the obnoxious phrases, such discrimination runs afoul of the First Modification’s neutrality necessities. So, as an example, if preventing phrases or incitement that demean or denigrate Democrats are made felony by a statute, however preventing phrases or incitement that demean and denigrate Republicans are by the statute’s phrases not criminalized, then the truth that preventing phrases are unprotected by the First Modification typically doesn’t save the statute.

As Mike factors out, this “logic applies to flag burning [that amounts to] preventing phrases or incitement.” Thus, if the federal authorities have been within the textual content of a statute to single out and punish solely these situations of incitement or preventing phrases that take the type of flag desecration (leaving different situations of incitement or preventing phrases lawful), R.A.V.’s issues about impermissible censorship could be implicated.

Though President Trump’s Govt Order doesn’t formally restrict the scope of, say, federal incitement statutes to incitement that takes the type of flag burning, we predict that “prioritizing” for prosecution incitement that consists of flag burning does implicate issues over whether or not the federal government is (permissibly) going after folks due to the detrimental results of incitement extra typically, or (impermissibly) due to the federal government’s aversion to the message of flag burning — a message the Govt Orders characterizes because the “clearest attainable expression of opposition” to our authorities. Mike doesn’t focus on this level, however we predict (and he would possibly agree) that there isn’t any qualitative constitutional distinction between defining the statutory contours of what’s felony, on the one hand, and figuring out classes of exercise which can be “prioritized” for punishment beneath a extra typically crafted statute, on the opposite.

However as refined as Mike’s evaluation is (and we had a lot the identical response that Mike did after we first learn the Govt Order), we predict the doctrinal evaluation is sophisticated by extra Supreme Courtroom circumstances. That’s, whereas Mike is actually proper that Johnson and Eichman aren’t the one circumstances to contemplate, we predict that even Johnson, Eichman and R.A.V. aren’t the one circumstances to contemplate.

Specifically, we predict that in assessing the Govt Order, circumstances wherein the Courtroom has upheld so-called “hate crime” legal guidelines (and associated statutes) should even be taken into consideration. In Wisconsin v. Mitchell, for instance, the Courtroom upheld a Wisconsin regulation that elevated punishment for people who dedicated crimes wherein they singled out their victims on the premise of race. In rejecting the argument that such an enhancement successfully punishes criminals for disfavored, racist views in violation of R.A.V., the Courtroom stated the next:

[W]hereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ”speech” or “messages”) the statute on this case is aimed toward conduct unprotected by the First Modification. Furthermore, the Wisconsin statute singles out for enhancement bias-inspired conduct as a result of this conduct is believed to inflict higher particular person and societal hurt. For instance, in accordance with the State and its amici, bias-motivated crimes usually tend to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite neighborhood unrest. . . . The State’s want to redress these perceived harms supplies an enough clarification for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.

We expect there’s significantly extra stress between R.A.V. (which was 5-4) and Mitchell (which was unanimous a yr later) than the Courtroom’s opinion in Mitchell suggests. First, to characterize the R.A.V. statute as centered on expression quite than conduct is to disregard the truth that “preventing phrases,” whereas expressive, fall outdoors the scope of expression protected beneath the First Modification. Think about, for instance, {that a} state criminalizes battery (undeniably conduct quite than speech) towards Republicans however not towards Democrats. The truth that assault is “conduct unprotected by the First Modification” doesn’t imply that the statute is immune from censorship issues. Extra typically, whereas the speech/conduct distinction is one thing the Courtroom does typically use in First Modification jurisprudence, it’s much less useful than meets the attention. Flag burning itself is well characterised as conduct, however the legal guidelines in Johnson and Eichman banning flag burning clearly implicate the First Modification as a result of the federal government was singling out sure conduct due to the conduct’s message. So what issues isn’t a lot whether or not a person’s actions look extra like conduct than speech (think about signal language); what issues most is whether or not the federal government doing the regulating appears to be motivated by the person’s viewpoints or messages.

Second, Mitchell’s reliance on the federal government’s declare that race-based sufferer choice inflicts “higher particular person and societal hurt” and is “extra prone to provoke retaliatory crimes . . . and incite neighborhood unrest” than different crimes is a treacherous foundation on which to uphold the Wisconsin statute; flag-burning, in spite of everything, would possibly generate harmful “secondary results” equivalent to neighborhood retaliation (the Govt Order plausibly calls flag destruction “uniquely provocative” amongst all of the sorts of probably inciteful conduct), however the Courtroom rejected authorities’s energy to ban it in Johnson and Eichman. So too racialized preventing phrases is perhaps significantly prone to immediate civil unrest, and but in R.A.V. the Courtroom stated that “secondary results” that come up from the response of third events to the felony’s messages aren’t cognizable bases for presidency to behave beneath the First Modification.

Nor can Mitchell be simply defined on the seemingly slender floor that sufferer choice is a definite class of felony intent that falls outdoors First Modification concern. Legal guidelines that specifically punish terrorism appear centered not simply on who the victims are, but in addition (if not moreso) on the political motivation of the terrorist. Punishing terrorist acts extra severely than in any other case an identical conduct that (not like terrorism) isn’t supposed to intimidate to be able to accomplish political goals would additionally appear to lift the query whether or not authorities is making an attempt to punish and deter the political mindset of the terrorists and never simply making an attempt to handle the real-world results of their dangerous conduct. Any but we take without any consideration that particular punishment of terrorist acts is permissible although why such legal guidelines are allowed isn’t fairly clear; the Courtroom in Holder v. Humanitarian Regulation Challenge upheld towards First Modification problem a regulation that prohibited the supply of fabric help to overseas terrorist organizations, however in so doing it relied on foreign-affairs components that don’t essentially apply within the home context.

Likewise, we take without any consideration that office discrimination on the premise of race or intercourse, whereas maybe politically motivated (for instance, a perpetrator would possibly nicely be impressed by the idea that racial minorities or ladies don’t belong in sure workplaces), may be prohibited beneath Title VII and comparable statutes. In Mitchell, addressing the defendant’s argument that the penalty enhancement impermissibly punished his motive, the Courtroom merely wrote: “However motive performs the identical function beneath the Wisconsin statute because it does beneath federal and state antidiscrimination legal guidelines, which we have now beforehand upheld [before R.A.V., we would add] towards constitutional problem.” Precisely what that “similar function” can permissibly be is anybody’s guess.

We aren’t in any respect intimating that R.A.V.’s core teachings are mistaken — we predict the case is correct (although it was intently divided) and that Mike Dorf is thus appropriate about President Trump’s Govt Order; actually the truth that authorities is regulating conduct or expression that typically falls outdoors the First Modification can’t imply that censorship is rarely afoot (take into consideration a regulation that specifically punishes threats that invoke Marxist ideology or threats that concentrate on Republicans). Nevertheless it additionally appears clear that the Courtroom has not offered good, straightforward solutions for why many felony legal guidelines that seem to punish extra harshly sure sorts of felony conduct animated by sure political motivations don’t additionally implicate First Modification skepticism. We don’t take the place that no convincing solutions to those questions might ever be original. For instance, maybe there should be a line drawn right here between legal guidelines that regulate proscribable actions (even expressive actions) on a content material foundation vs. legal guidelines that achieve this on a viewpoint foundation. Beneath this method, a regulation banning incitement regarding immigration coverage is perhaps permissible (since it might ban incitement focused at individuals who each help and oppose present immigration insurance policies), however a regulation banning threats towards Democrats solely would violate the Structure as a result of it singles out one political celebration’s viewpoint. Extra typically, we predict the Courtroom has been overly reflexive in lumping collectively doctrinal remedy of content- and viewpoint-based legal guidelines in a wide range of settings. Coming again to the flag-burning Govt Order itself, even when a cautious distinction between content material and viewpoint have been employed, singling out flag desecration would stay problematic as a result of flag destruction displays a specific (albeit considerably capacious) viewpoint that’s undeniably essential of presidency coverage and the established order. In any occasion, we don’t search on this column to current and defend the most effective solutions to those and associated doctrinal puzzles. As a substitute our level is that the Courtroom has not completed a lot to offer analytic readability and consistency on this realm. And that sort of doctrinal inadequacy in such an advanced constitutional enviornment as that is by no means comforting.