President Trump Monday signed an executive order that aims to prosecute burning of the American flag, even though the Supreme Court has ruled it is legitimate political expression protected by the First Amendment.
The order, which acknowledges the top court’s 1989 ruling on the issue, instructs the Justice Department to investigate and prosecute, “to the fullest extent permissible under any available authority,” anyone caught burning the Stars and Stripes on the grounds that the action “is likely to incite imminent lawless action.”
“(It) incites riots at levels we’ve never seen before,” Trump told reporters at a White House signing ceremony, claiming that some people may be “going crazy” to support burning the flag while supporters may get angry at people for burning it.
He did not offer examples of such violent confrontations or otherwise explain why new rules were needed.
“Because what happens when you burn a flag is the area goes crazy,” Trump said. “If you have hundreds of people, they go crazy.”
Free speech advocates quickly denounced the order as unconstitutional and un-American.
“The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say,” said Bob Corn-Revere of the Foundation for Individual Rights and Expression (FIRE).
The order attempts to thread a legal needle by noting that no one would be prosecuted for simply burning the flag alone, which it acknowledges could violate the First Amendment guaranteeing freedom of speech.
It rather suggests that they could be charged for burning the flag while “causing harm unrelated to expression.” The order says such other crimes could include discrimination against U.S. citizens, hate crimes or crimes against property.
The text of the executive order asserts that desecrating the American flag is “uniquely offensive and provocative.”
“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,” the order reads. “Burning this representation of America may incite violence and riot.”
The order calls on the attorney general to prioritize enforcement “to the fullest extent possible” of criminal and civil laws against flag burning that cause harm unrelated to the First Amendment, although it was unclear how that would be possible.
Trump said the penalty for flag-burning would be one year in jail with no opportunity for early release.
The order also states that immigrants or visitors who burn the American flag risk having their visas, residency permits, naturalization proceedings and other immigration benefits revoked. They could also be permanently deported.
The order appears to violate the decision in the Supreme Court’s 1989 Texas v. Johnson case, which protects flag burning as legitimate political expression. The late Justice Antonin Scalia, the conservative icon who Trump has repeatedly praised, joined the majority for the ruling.
Trump said the court that ruled that flag burning is constitutionally protected didn’t consider the danger of flag-burning.
“They called it freedom of speech,” the president said. “But there’s another reason, which is perhaps much more important. It’s called death.”
