President Trump’s executive order on flag burning has re-ignited an old debate. Conservatives tend to be outraged by symbolic destruction of the flag for political purposes, while liberals defend, if they don’t actually revel in, flag burning.
Many observers have denounced Trump’s order as plainly unconstitutional. But, as usual, they haven’t read it. In a decision that could have gone either way, the Supreme Court has held flag burning to be a form of constitutionally protected symbolic speech. But that doesn’t resolve all potential legal issues. The executive order says:
Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
The order directs DOJ to take actions that are explicitly subject to whatever constitutional protections flag burning may enjoy. The order addresses actions that violate “content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.”
(a) 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. 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.
(b) In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.
(c) To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.
And there is an immigration angle:
(d) The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.
I doubt that much will come of this order, given the protections afforded by existing case law. But I could be wrong: imminent incitement is likely present in some cases, and standard time, place and manner limitations could apply in others. It may well be that under a regime that condemns, rather than celebrating, flag burning, such incidents will decline.
Once again, President Trump has created a situation that causes liberals to gnash their teeth, but without being able to explain honestly why they are so dismayed.
The reference in the post title comes, by the way, from John Greenleaf Whittier, whose attitude toward the flag may seem quaint today.
