In February, Vice President JD Vance made waves for his address at the 61st Munich Security Conference that raised threats to free speech in Europe. Citing various examples of governmental attacks on free speech, such as prosecution of silent prayer and online comments critical of feminism, Vance told European leaders that their own practices rejected values ostensibly shared by the U.S. and Europe.
Vance admitted that censorship is also found in America, but comforted Europeans with bold words.
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“In Washington, there is a new sheriff in town,” he said, “and under Donald Trump’s leadership, we may disagree with your views, but we will fight to defend your right to offer them in the public square, agree or disagree.”
This week, Vance’s warnings about the lack of freedom in European countries came to the public’s attention yet again when comedy writer Graham Linehan of “Father Ted” fame was arrested upon arrival in London’s Heathrow airport. His crime? Three posts on X that were deemed “transphobic.”
Yet, some have asked whether Vance is a hypocrite on free speech. When Donald Trump released an Executive Order on flag burning, Vance posted a terse message of support: “Few things: 1) Antonin Scalia was a great Supreme Court Justice and a genuinely kind and decent person. 2) The President’s EO is consistent with Texas v. Johnson. 3) Texas v. Johnson was wrong and William Rehnquist was right.”
The references were to the landmark decision of the Supreme Court in the 1989 case ruling that flag burning was itself a form of constitutionally protected speech. In that case, the legendary Supreme Court Justice Antonin Scalia voted in the majority on the case on the opposite side of conservative judicial hero William Rehnquist.
Jacob Mchangama, the Danish-born human rights lawyer, journalist, and Vanderbilt University professor, posted a picture of Vance’s comments on the Executive Order next to a screenshot of comments from Vance’s Munich speech in which he talked about a Swedish case where a man was convicted of participation in burning copies of the Quran. “And, as the judge chillingly noted,” Vance said, “Sweden’s laws to protect free expression do not in fact grant — and I’m quoting — ‘a free pass to do or say anything without risking offending the group that holds that belief.’”
Mchangama’s comments were terse, contrasting his disapproval of the Supreme Court decision with his advocacy of freedom in Sweden: “Which is it, Mr. Vice President?”
Can Vance’s advocacy on both sides fit together?
The EO itself claims it is not meant to override the ruling in Texas v. Johnson that burning an American flag is not per se an example of “fighting words,” the term first used in Chaplinsky v. New Hampshire (1942) to designate words that incite violence. Yet, the EO goes on to say that “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.”
It may sound as though the Trump administration is attempting to square a circle, but that is not the case. The notion of fighting words in American jurisprudence is not that a George Carlin-like list of seven dirty prosecutable words exists. A survey of “fighting words” judicial decisions reveals that circumstances determine whether words are fighting words. And if words are fighting words depending on circumstances, why not actions?
In any case, the EO directs the Attorney General to “prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” In other words, Trump hyperbolically summarized the EO as giving a year in jail for flag burning — and that’s not true. What it says is that the nation’s law enforcement will prioritize “content neutral crimes” in which flag burning was involved.
This seems no different from “hate crime” laws, in which crimes that direct hate at a certain group are prioritized and hate crime designations result in stiffer sentences. One way of viewing the EO is as a hate crime application attached to America and Americans. And when the act of flag burning is done in a fighting words manner, it will be prosecuted. As the EO states, “American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”
One might argue that Vance is within his rights and not inconsistent or hypocritical to defend the EO. But what of his contention that Texas v. Johnson was decided wrongly? Does this not render him hypocritical?
No. Texas v. Johnson was decided by a 5-4 majority, with Justice Scalia joining the liberals. While admiring of the late justice, conservatives are not bound to any doctrine of Sola Scalia.
We must also ask, “Was there no free speech before 1989?” Were the many states that enjoined public burning of the flag themselves tyrannical in doing so? William Rehnquist didn’t think so. In his dissent, he observed that the idea that enjoining flag burning is a violation of rights collides with another aspect of our polity: “The court decided that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the armed forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.”
Finally, does prohibiting public flag burning really infringe on speech? Is there no other method of conveying dissatisfaction or moral disapproval of government policy than burning the flag? If freedom of speech and expression are about the ability to criticize those in power, what necessary connection is there between that goal and the destruction of the symbol of our nation and its ideals? Does the flag represent government or the nation?
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Vance has shown no interest in enjoining any form of speech or expression on the internet or elsewhere criticizing others. That he thinks it acceptable to enjoin desecration of the flag does not entail approval of a limit to speak or symbolize opposition to elected leaders, public individuals, the claims of other religions, or anyone else.
Vance speaks for many Americans who no doubt disapprove of censorship. A 2020 YouGov poll showed 49% of Americans favored making flag burning illegal. A 2023 poll showed 59% of Americans think burning flags “always unacceptable” as a form of protest. Are they all hypocrites?
