President Donald Trump signed an executive order on Monday ordering the Justice Department to prosecute people who set fire to the American flag. The order contradicts a 1989 Supreme Court ruling that determined flag burning is protected by the First Amendment.
“My Administration will act to restore respect and sanctity to the American Flag and 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 executive order says.
In Texas v. Johnson, the Supreme Court ruled that burning the American flag is an act of political speech protected by the First Amendment. Former conservative Supreme Court Justice Antonin Scalia voted in favor of the decision.
“We have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government,” he explained in 2012. “I mean, that was the main kind of speech that tyrants would seek to suppress.”
In the executive order, the Trump administration argues that the 1989 ruling does not apply as flag burning amounts to incitement. “Notwithstanding the Supreme Court’s rulings on First Amendment protections,” it says. “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.”
However, Justice William Brennan wrote in the majority opinion that flag burning does not amount to “fighting words.” The Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression,” he wrote.
In addition to targeting Americans engaged in constitutionally protected political speech, the order directs the State Department, Justice Department, and Department of Homeland Security to deport immigrants, even permanent residents, who engage in flag burnings.
