In his inaugural address on Jan. 20, President Donald Trump explained that “after years and years of illegal and unconstitutional federal efforts to restrict free expression, I also will sign an executive order to immediately stop all government censorship and bring back free speech to America.”

Trump’s Monday executive order calling for prosecutions of those who burn the U.S. flag reminds us that his inaugural pledge was a hollow one. As Trump put it, “If you burn a flag, you get one year in jail.” The language of Trump’s executive order makes clear that his lawyers know this isn’t very serious stuff. Observing the Supreme Court case of Texas v. Johnson, which upheld the constitutionality of flag burning, the order calls for prosecutions where flag burnings threaten or lead to imminent lawless action. This is a reference to the imminent lawless action test under the Supreme Court case of Brandenburg v. Ohio. That test requires that speech rising to the level of criminal incitement both intends to provoke imminent unlawful activity, such as a riot, and will likely do so in a timely fashion.