Trump wants to prosecute people who burn the US flag; advocates say its protected speech
President Donald Trump has announced a plan to prosecute anyone who burns a United States flag, even though the U.S. Supreme Court has upheld the right for people to do so.
Trump issued an executive order on Monday vowing that his administration will "prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority."
"The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative," stated the order.
"It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot."
The order calls on Attorney General Pam Bondi to "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."
"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," continued the executive order.
The Foundation for Individual Rights and Expression, a nonpartisan free speech advocacy organization, says Trump doesn't have the "power to revise the First Amendment with the stroke of a pen."
"Flag burning as a form of political protest is protected by the First Amendment," FIRE Chief Counsel Bob Corn-Revere in a statement. "That's nothing new. While people can be prosecuted for burning anything in a place they aren't allowed to set fires, the government can't prosecute protected expressive activity — even if many Americans, including the president, find it 'uniquely offensive and provocative.'"
In 1989, the U.S. Supreme Court ruled 5-4 in the case of Texas v. Johnson that burning the American flag was a constitutionally acceptable form of public protest.
At issue in the case was a man named Gregory Lee Johnson, who burned an American flag outside of the Republican National Convention in 1984 to protest Ronald Reagan.
"Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace," wrote Justice William Brennan for the majority.
"Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."
Chief Justice William Rehnquist authored a dissenting opinion in the 1989 case, claiming that "the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here."
"The flag is not simply another 'idea' or 'point of view' competing for recognition in the marketplace of ideas," he added. "I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."
