President Donald Trump’s new executive order on prosecuting flag-burning is likely to be upheld in the courts — only because it is narrowly tailored to target other crimes, not the mere burning of the flag in protest.
The U.S. Supreme Court upheld the First Amendment right to burn the American flag in Texas v. Johnson (1989), and overturned a subsequent statutory ban in U.S. v. Eichman (1990). President George H.W. Bush then proposed a constitutional amendment to ban flag-burning, which went nowhere.
President Trump has made no secret of the fact that he would like to outlaw flag-burning. But the text of his new executive order is much less ambitious, to avoid being struck down by the courts, which it would be if it banned flag desecration.
The order says (emphasis added):
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. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). 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.
In other words, Trump’s executive order admits, by implication, that burning the flag is a form of protected free speech.
The president simply intends to patrol the usual constitutional boundaries around that speech. He will prevent the flag from being burned as a way of inciting violence, for example, or in ways that violate other laws, such as “open burning restrictions, disorderly conduct laws, or destruction of property laws.”
The executive order explicitly states that the proposed ban on flag burning will be “content-neutral,” another way of protecting the burning of the American flag, when it is no more than a form of protest, not violence.
There is only one part of the executive order that bans flag-burning as a form of expression, and it applies only to foreigners, who can be deported for desecrating the flag.
That is entirely constitutional, as foreigners — and even legal permanent residents — do not enjoy all of the rights of U.S. citizens. Moreover, the president’s power to regulate immigration is almost unrestricted, as the courts have repeatedly held.
Libertarians do not like anything that smacks of a ban on flag-burning, however odious they may also find that gesture to be.
But they need not worry: Trump’s executive order, dressed as a ban, is closer to the opposite.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of The Zionist Conspiracy Wants You, now available on Amazon. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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