"If you burn a flag, you get one year in jail," President Donald Trump said as he signed executive orders in the Oval Office on Monday.

[essentialsaltes]

"What it does is incite to riot," Trump said of flag burning. He said under this order, "you will see flag burning stopping immediately."

In 1989, the Supreme Court ruled that flag burning was a form of "symbolic speech" under the Constitution.


-

It looks as though the order is simply applying known limits to free speech, such as inciting imminent lawlessness, to flag burning. And clearly trying to move the needle as far as possible in the direction of prosecution.

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.

 

[GoldenBoy89]

This should make for some interesting VFW ceremonies.

 

[Tuur]

On the offhand chance anyone cares to read it, here's the executive order:

Prosecuting Burning of The American Flag

My own take-aways:

1. Flag desecration has been ruled as free speech by the USSC.

2. Trump refences "fighting words. "But "fighting words" has more to do with intent and consequences. If someone is trying to pick a fight for whatever reason and utters words gauged to cause that effect, it's fighting words. But the only time I've heard that brought up was in reference to the results of the speaker getting precisely what he wanted, if not more. Difficult to see how this applies here. Honestly, my vision's not that sharp.

3. Since the EO reference flag desecration, respectfully destroying a worn-out flag isn't covered, as has been implied.

 

[Say it aint so]

"a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent." --Texas v. Johnson, 491 U.S. 397 (1989)

 

[iluvatar5150]

This was the guy leading the “free speech” coalition? lol

 

[GoldenBoy89]

It’s ironic he ever questioned Obama’s nationality when he’s quite easily the most un-American president we’ve ever had.

 

[Richard T]

So one year in jail? Why is burning a flag a Federal offense? Seems to be to violate state's rights entirely. The 1989 case was Texas vs Johnson.

Can you make up statutes by executive order? I'm guessing some activists will try to get arrested. Someone too might goad the administration in hopes of an arrest so they can get a settlement down the road.

Another issue I see is that when the left gets a more authoritarian President, the banning of certain gun activities or even worship seems well within reach. Trump is conditioning America to accept radical Presidential action, so please don't just think it will be only conservative.

 

[durangodawood]

Flag burning is nasty. Its basically a plastic fire.

 

[Paulos23]

Flag burning is nasty. Its basically a plastic fire.

Depends on what the flag is made of, but the newer ones are mostly plastic.

 

[essentialsaltes]

I'm guessing some activists will try to get arrested.

I'm thinking I may try to free speech safely in public.

 

[rambot]

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.

I'm getting really tired of Trump trying to find ways to make Republicans feel ZERO responsibility for their actions.

 

[DaisyDay]

EO's are not laws. Does that matter?

 

[Tuur]

So one year in jail? Why is burning a flag a Federal offense? Seems to be to violate state's rights entirely. The 1989 case was Texas vs Johnson.

Can you make up statutes by executive order? I'm guessing some activists will try to get arrested. Someone too might goad the administration in hopes of an arrest so they can get a settlement down the road.

Another issue I see is that when the left gets a more authoritarian President, the banning of certain gun activities or even worship seems well within reach. Trump is conditioning America to accept radical Presidential action, so please don't just think it will be only conservative.

FWIW, read the EO. Trump may have said a year in jail, but if it's in the EO, I missed it. Part of it is to work with states. But that doesn't get around flag burning having been ruled protected speech. That applies to states, too.

 

[Tuur]

Flag burning is nasty. Its basically a plastic fire.

Come to think of it, with synthetics, you're right. Synthetics have the nasty habit of sticking to things, too. Was still thinking of cotton flags, but do they even make them anymore?

 

[Tuur]

EO's are not laws. Does that matter?

Did it matter with Biden? Did it matter with George HW Bush when he set into motion the last great metric push in the US? Did it matter when Clinton counter-ordered Bush's EO?

Look at the current EO in question. It's trying to find an existing law to apply, so it's not making up a law on the fly. The sticking point is that the USSC has already ruled desecrating a US flag (in this case by burning) is protected speech, which is probably why Trump's trying to find a loophole through fighting words. But how are you going to determine that someone burned a US flag hoping to provoke a response? Frankly, I don't see it.

 

[Yarddog]

This was the guy leading the “free speech” coalition? lol

They want free speech to say what they want but want censorship to control the opposition.

 

[DaisyDay]

Did it matter with Biden? Did it matter with George HW Bush when he set into motion the last great metric push in the US? Did it matter when Clinton counter-ordered Bush's EO?

Yes, it mattered.

Look at the current EO in question. It's trying to find an existing law to apply, so it's not making up a law on the fly. The sticking point is that the USSC has already ruled desecrating a US flag (in this case by burning) is protected speech, which is probably why Trump's trying to find a loophole through fighting words. But how are you going to determine that someone burned a US flag hoping to provoke a response? Frankly, I don't see it.

That's the whole problem with the flag burning - it is in the Flag Code that the proper way to dispose of a tattered flag is to burn it, so according to this EO, burning it respectfully, is legal but if you burn it with bad thoughts, it is illegal. I don't see it either.

 

[Tuur]

That's the whole problem with the flag burning - it is in the Flag Code that the proper way to dispose of a tattered flag is to burn it, so according to this EO, burning it respectfully, is legal but if you burn it with bad thoughts, it is illegal. I don't see it either.

Not exactly. Burning it respectfully, per flag code, is one thing. Burning it at a protest is clearly another. The question of intent is whether a protestor did it deliberately to provoke a response. That's the only "wiggle room" available, and even that's not clear. Once saw protestors literally get into the face of law enforcement, and I doubt it was to check to see if they'd shaved. That was clearly to provoke a response. But if they hadn't got into the face of law enforcement, it would be hard to claim that was the intent.

If someone burns a flag at a protest in hopes of provoking a response, the most likely charge would be attempt to incite a riot. In that case it's not so much burning a flag but the attempt to trigger mayhem. Trying to apply something of that sort specifically to flag desecration (and while burning is on everyone's mind, desecration isn't restricted to burning) is iffy, and I don't think it'll stand.

 

[DaisyDay]

Burning it respectfully, per flag code, is one thing. Burning it at a protest is clearly another. The question of intent is whether a protestor did it deliberately to provoke a response.

The act is the same; the intention aka "speech" is the difference which is covered by the First Amendment.

 

[Yarddog]

Not exactly. Burning it respectfully, per flag code, is one thing. Burning it at a protest is clearly another. The question of intent is whether a protestor did it deliberately to provoke a response. That's the only "wiggle room" available, and even that's not clear. Once saw protestors literally get into the face of law enforcement, and I doubt it was to check to see if they'd shaved. That was clearly to provoke a response. But if they hadn't got into the face of law enforcement, it would be hard to claim that was the intent.

If someone burns a flag at a protest in hopes of provoking a response, the most likely charge would be attempt to incite a riot. In that case it's not so much burning a flag but the attempt to trigger mayhem. Trying to apply something of that sort specifically to flag desecration (and while burning is on everyone's mind, desecration isn't restricted to burning) is iffy, and I don't think it'll stand.

I don't like to see someone disrespect the flag BUT it know that is legal to burn "one's own flag", as long as it is done in a place where fire is permitted and not in a manner where it can cause injury. If I get upset by the flag burning, that is my fault and I am not permitted to retaliate for the flag burning or any legal action which another person does.

Trump cannot change US Law.