Yesterday, the White House issued an executive order aimed at “combating flag desecration,” “restoring respect for the flag,” and “upholding American pride.”
The EO directs Attorney General Pam Bondi to “vigorously prosecute” flag-burners and to “pursue litigation to clarify the scope of First Amendment in this area.”
(It’s already been clarified.)
Related: MAGA Influencer Accuses AG Pam Bondi of First Amendment Violation on X
Via Whitehouse.gov (emphasis added):
Today, President Donald J. Trump signed an Executive Order to restore respect, pride, and sanctity to the American flag and prosecute those who desecrate this symbol of our freedom, identity, and strength to the fullest extent permissible.
The Order directs the Attorney General to vigorously prosecute those who violate our laws in ways that involve desecrating the flag, and to pursue litigation to clarify the scope of First Amendment in this area.
It also instructs the Attorney General to refer flag desecration cases that violate state or local laws to appropriate state or local authorities.
Finally, the order directs the Secretaries of State and Homeland Security and the Attorney General to deny, prohibit, terminate, or revoke visas, residence permits, or naturalization proceedings, and other immigration benefits, or seek removal from the United States, wherever there has been an appropriate determination that flag desecration by foreign nationals permits the exercise of those remedies under applicable law.
The last provision is the only one that makes any real sense, in that the United States should not be compelled to dispense visas to foreign nationals that demonstrate contempt for America by desecrating its symbols.
But as for the rest of us — for Americans from America who inherited the Constitution as their birthright — this is authoritarian overreach that demonstrates a misunderstanding, if not contempt for, the founding principles for which the flag, ironically, stands as a symbol.
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The Supreme Court has weighed in on this issue multiple times, first in 1989 and later in the 1990 United States v. Eichman case, in which the court invalidated a federal law prohibiting flag-burning.
Via uscourts.gov (emphasis added):
Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas. Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were "symbolic speech" protected by the First Amendment. The Supreme Court agreed to hear his case…
The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of "symbolic speech" that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society's outrage alone is not justification for suppressing free speech. In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although the law punished actions, such as flag burning, that might arouse anger in others, it specifically exempted from prosecution actions that were respectful of venerated objects, e.g., burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based solely upon viewpoint.
Don’t take it from me; take it from arguably the most conservative justice in Supreme Court history, Antonin Scalia, the deciding vote in the 1989 Texas vs. Johnson case.
You should be in no doubt that, patriotic conservative that I am, I detest the burning of the nation’s flag—and if I were king I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.
-Justice Antonin Scalia
