By Clodagh Harrington
“If you burn a flag, you get one year in jail. No early exits. No nothing.” This is what US president Donald Trump announced in the Oval Office in the last week in August. Ever the master media manipulator, America’s communicator-in-chief issued this as an executive order.
An executive order is issued by the president and doesn’t need to be passed by Congress. They are, however, expected to relate to existing law. Trump so far has signed 196. His latest directive, which aims to restore “respect, pride and sanctity” to the US flag, instructs the Department of Justice to investigate instances of burning the nation’s insignia under particular circumstances.
While the practice of flag burning as protest has a long history in the US, dating back to the US civil war, it is not a regular occurrence, and has been constitutionally permitted for decades.
The issue is already creating divisions among Republicans. There are three broad categories of GOP reaction. First, the Maga faithful are unlikely to complain. Unconditional support for their leader is a key trait of this group. And the executive order includes language with guaranteed appeal to those for whom terms such as “American patriots” and “foreign nationals” are predictable triggers. The president has long excelled at rallying his supporters on flag-related matters.
Beyond red-meat-for-the-base appeal, both the executive order and GOP support for it get a little more complex. Traditional conservatives, including Senate majority leader Mitch McConnell, are a group that may have strongly negative feelings about flag burning, but their adherence to the first amendment and associated freedom of expression would generally override this.
Those who hold constitutional principles in high regard are increasingly concerned about a president demonstrating his desire for expansive power. And, the US Supreme Court has clearly ruled on more than one occasion that the act, however distasteful, is constitutionally permitted.
Antonin Scalia, the late Supreme Court justice and noted constitutional textualist, famously stated that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag”. But, he added: “I am not king.” Alongside the more centrist Anthony Kennedy, these justices upheld the right to burn the US flag in the 1989 landmark case of Texas v Johnson, despite Scalia’s personal distaste for the act. In his writings, Scalia differentiated between the form of expression that was flag burning, and an act of insurrection, which, he noted, was “something quite different”. The first amendment, as he understood it, allowed for symbolic political protests, regardless of how offensive such expressions might be to patriotic sensibilities.
Already, analysts have highlighted how the president’s efforts to sidestep the constitution are laden with problems. Executive orders cannot override a Supreme Court ruling. Even Donald Trump should know that.
Getting around current law
What the executive order does attempt to do is to get around the law that allows flag burning. To do so, it focuses on associated crime such as property destruction, open burning violations and disorderly conduct. The attorney general, Pam Bondi, was instructed to pursue cases against those who “incite violence or otherwise violate our laws while desecrating this symbol of our country”. So, when someone is (legally) burning a flag, they may be acting illegally at the same time by, for example, committing a hate crime. And this could trigger prosecution.
Furthermore, the executive order nods to a key flashpoint of the current climate by leveraging immigration law, and potentially facilitating the deportation of non-citizens who engage in flag-burning. Beyond the smoke-filled headlines, what this ruling does is circumvent the core ruling of Texas v Johnson by focusing on the circumstances surrounding any flag burning, rather than the act itself. A further aspect will involve the extent to which the courts could expand existing first amendment exceptions. This can only make for nervous constitutional conservatives.
The third group who mostly reside on the Trumpian side of the partisan fence are libertarians such as Republican senator Rand Paul. In a similar vein to their conservative counterparts, their worldview would sit uncomfortably with the president’s foray into testing constitutional principles, and not standing up for more wide-ranging free speech.
Flags and freedom
Libertarians tend to feel strongly about freedom of expression. And when their president picks a fight with the first amendment for no apparent reason beyond a mention he made of it on the campaign trail, he may end up aggravating more supporters than he pleases.
Writing on Reason.com, libertarian journalist Robby Soave argued that Trump is the “last person who should confuse protected speech with incitement to violence”. He added: “Any administration that purports to care about freedom of speech should easily reach the conclusion that criminalizing provocative yet nonviolent acts of political expression is a violation of this principle.”
For a president who deliberately and controversially appointed “Scalia-like” judges during his first term, his latest executive order seems at odds with this vision. Such inconsistency, for what may involve more Justice Department smoke than actual fire, may not serve the president well if many conservatives remain uncomfortable with the move.
To misquote a famous phrase attributed to Voltaire, the US Supreme Court has repeatedly ruled that whatever a majority of the justices think of those who actually want to burn the US flag, they will all but defend to the death your right to burn it.
The waters are further muddied now that a self-described combat veteran has set fire to the flag in response to the executive order. It is unlikely he is a “sandal-wearing weirdo”. Hence, the president’s patriotic script may end up somewhat singed around the edges.
Clodagh Harrington is Lecturer in American Politics at University College Cork in Ireland.
Laurel says
Well, this will be predictable as hell. Almost no one, here in the U.S. (including migrants) have no desire to burn the flag. It’s a repulsive idea to most everyone. However, our soldiers have given life and limb to give us the freedom to do so! The Constitution protects our freedom of expression.
I’m sure that those who wear the flag on their bottoms, as a bathing suit, or keep a flag flapping on the back of their truck or motorcycle until it shreds (and still keep it flapping), or have it flying off the back of their boat at the same height of their Trump flag, will disagree with me.
The king has put force an edict; all hail the king. He mocks souls of those who fought in battle, of which he managed to escape.
Pogo says
@Clodagh Harrington
Maith an bhean!
If you want a symbolic gesture, don’t burn the flag; wash it.
— Norman Thomas
https://www.google.com/search?q=Norman+Thomas
Deborah Coffey says
Donald Trump knows almost nothing about the Constitution or Supreme Court decisions. He can barely read. Even if someone told him what’s in it, he wouldn’t care. Remember when he said we should get rid of it? In my view, there are NO Republicans of any kind that care about the flag-burning issue or any other numerous laws that Donald Trump is breaking on a daily basis. Do you see them doing anything at all to stop him? No, you don’t. In fact, they are rubber stamping every thing the Nazi wannabe dictator wants.
JimboXYZ says
The only time a US Flag should ever be burned by a US Citizen on domestic soil is when the flag is to be retired for being worn out & aged. Don’t like America & what it stands for, love it or leave it applies. The protests of burning an American flag has always been about the individuals that the protest is directed towards, it certainly can’t be the principles of the flag, the Constitution for which the nation was founded for. Don’t like Trump, buy one of his many marketing gimmicks & burn those in protest, leave the flag out of that protest. Like any of the rest of us, turns out a majority couldn’t stand Biden-Harris even more. Nobody was burning the flag that day from the right for Israel vs Palestine, Russia vs Ukraine. The left is always the problem for the burning of the flag. Odd, you never see the Clintons, Obamas or Bidens burning a flag, why would their radical leftist constituents burn an American flag ? I recall it was Bill Clinton that said the USA isn’t perfect & Democracy s a process of making America a relatively more perfect union ? One would have to be brain damaged to buy any flag, to burn in protest, especially if they are living under the very freedom that flag represents. But that’s what has always happened, pro USA/anti Asia. I just recall Harley Davidson bikers buying a Japanese road bike to smash with a sledge hammer during bike weeks. And guess what ? That was even a money making scheme, the protestors/haters were selling lots of sledge hammer hits to pay for that junker of a Japanese road bike. The victim of the sledge hammer event wasn’t even a brand new Japanese road bike. But all the drunken idiots lined up with their $ 20 to smash a Japanese road bike that didn’t run & was in a salvage yard in Bunnell or Holly Hill FL.
Just a suggestion, save your money and don’t buy a US flag, there’s your protest of a cancel culture. Try not to burn your house down or start a wild fire protesting. The most satisfaction I think anyone ever got from a flag burning, is the protestor lights himself on fire and then is a burn trauma victim or fatality for their own self inflicted stupidity of a relative Self-Immolation ? Even Aaron Bushnell didn’t burn the flag in protest. Any of it is really more sad, rather than a satisfying moment.
https://en.wikipedia.org/wiki/Self-immolation_of_Aaron_Bushnell
Sherry says
Just another disrespectful attempt of trump to “burn our freedoms” in his fascist dictatorship!
While I personally would never ever desecrate our flag in any way, Laurel has an excellent point. What is the difference between “burning a flag” versus desecrating it in other ways. What about wearing it on your “ass”? What about flying it next to a sign that says “FU$% Biden”? What about flying it next to a sign that worships a “Convicted Criminal/Sexual Abuser”?
YankeeExPat says
Republicans are more into book burning.
Samuel L. Bronkowitz says
Personally I think everyone should be required to wipe their asses with the flag or use it as a rug.
Kennan says
Let’s be honest. The American flag it’s nothing more than a symbol. What it symbolized in 1776, what it symbolized in 1876, what is symbolized in 1976, and what it symbolizes today rise and fall in varying degrees, depending on who you are. Who we are. Who we were, and who we wanna be. When people say be a good American? I don’t know what the fuck that means. Be the best person you could be? Be the worst person you can be? Be the best or worst leader you can be?
Freedom of expression is the most important right we have, as long as you’re not hurting anyone. That doesn’t apply to your feelings, though. One could say the flag once stood for human rights, freedom, and the right to be yourself.
One thing I can be sure of is that our current president is not concerned with what he can do FOR the country, but what he can do to it.
The flag can stand for the best and worst that our leaders have to offer, in fact what we have to offer, not just our country, but the rest of the world.
Ultimately, until our leaders start doing their job and working for us, the people, then the flag will just be a SYMBOL .
Like George Carlin said,”SYMBOLS are for the SYMBOL minded.
Skibum says
For me personally, there were many days in the recent past when I would have enjoyed stopping my car at the intersection of Rd. 100 and A1A in Flagler Beach, confiscating all of the Trump flags, all of the F#*k Biden flags, and burning them to cinders… except for the fact that although I do not agree with or appreciate those maga idiots waving those despicable flags in public, I do have respect for the 1st Amendment and their right to stand there and wave those idiotic flags in public.
What separates me and other like minded Americans from this state’s government, drumph and his cast of fools and the maga mush brains is that THEY are fine with banning protesters, banning free speech, banning books, etc. while at the same time yelling that THEY have a constitutional right to do what they are doing.
You cannot have it both ways… you either believe in having constitutional rights for ALL Americans or for nobody because the rights and privileges do not just apply to the maga extremists who are controlling FL state and federal government at the moment!
Sherry says
Right On Skibum!
Laurel says
Heavens! Let me apologize for the double negative sentence, and spell check override of my first post!
Anyway, I find it really hard to understand anyone who has a POW flag, and a Trump flag, on the same pole. Like Skibum said, you can’t have it both ways, though Trump has been giving absurd, mixed messages since the beginning of his power grab.
One thing that is offensive to me is the far right thinks it has ownership of our flag. FYI: It is shared by us all.