When President Donald Trump announced an executive order last month to prosecute those who burned the American flag, he reignited an intraconservative argument about First Amendment protections and Supreme Court precedent.
On Aug. 25, the president proudly unveiled a new order called “Prosecuting Burning of the American Flag.” According to the president, the order was straightforward: “If you burn a flag,” he announced, “you get one year in jail.” Give the man credit for consistency. Shortly after he won the 2016 presidential election, he posted on what was then called Twitter, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”
In the Oval Office, Trump explained that while the Supreme Court had defended flag burning on free speech grounds, there was something more important involved: “It’s called death,” the president said. Because “what happens when you burn a flag is, the area goes crazy. … When you burn the American flag, it incites riots at levels that we’ve never seen before.”
It seems to me that the president has the cause and effect reversed. Rioters like to burn flags during riots. The act is not what starts the riot.
Regardless, the language of the executive order is more circumspect than the president’s summary of it. For example, it does not directly ban the burning of the flag. Instead, it declares the administration will “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 Right was divided over the president’s order. “The people who burn the flag are, without exception, degenerate communist filth who want you and your family dead and your nation destroyed,” Matt Walsh posted. (Walsh acknowledged that this was a new opinion for him. In 2019, he tweeted, “I think burning the flag is stupid and gross but obviously it is free speech.”) Sean Davis of the Federalist reasoned that “if it’s illegal to burn pride flags or do burnouts on rainbow crosswalks, then it should be illegal to burn the American flag.” That is, turnabout is fair play.
Other prominent right-of-center X accounts criticized the order. “I would never in a million years harm the American flag,” pundit Jesse Kelly posted. “But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.” Radio host Dana Loesch declared, “Flag burning is vile but the government has no right to control speech or expression.”
It’s not new for this issue to divide conservatives. The division was evident in the landmark Supreme Court decision that remains the biggest obstacle to Trump’s burning desire to prosecute flag burners, Texas v. Johnson (1989). In that case, a demonstrator named Gregory Johnson protested outside the 1984 Republican National Convention in Dallas by pouring kerosene on an American flag and lighting it aflame. Johnson was convicted under a Texas law that prohibited flag desecration. He was fined $2,000 and sentenced to a year in prison.
In a 5-4 decision, the Supreme Court ruled that the Texas law violated the Constitution’s protection of the freedom of speech. Justice William Brennan wrote for the majority, “Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.” Writing for the minority, Chief Justice William Rehnquist argued that as an important and historical symbol of national unity, the flag deserved special protection. “For more than 200 years,” his dissent begins, “the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here.”
The court’s vote featured uncommon alliances. Brennan, a liberal lion, was joined by fellow reliable liberal votes Harry Blackmun and Thurgood Marshall, as well as by the more conservative Reagan appointees Antonin Scalia (my father) and Anthony Kennedy. Those who believed the law was constitutional were Rehnquist, a conservative Nixon appointee whom President Ronald Reagan elevated to chief justice; Sandra Day O’Connor, Reagan’s first appointee; Byron White, a centrist; and John Paul Stevens, a reliable liberal. When, in response to this decision, Congress passed a federal law banning flag burning, the court struck it down in United States v. Eichman (1990) with the same 5-4 vote.
Among the conservatives and Republicans who expressed disagreement with the opinion was President George H.W. Bush, who reacted to the decision by saying, “I have to give you my personal, emotional response: Flag burning is wrong, dead wrong.” (Most people who defend the court’s decision would agree, but the moral and legal questions are distinct.) So did the great constitutional scholars Walter Berns and Robert Bork. This division hit close to home for me: My mother poked fun at my father the next morning by humming “You’re a Grand Old Flag” during breakfast.
My father often brought up flag burning when he discussed his approach to constitutional interpretation, known as originalism. Originalists interpret the provisions of the Constitution according to how they would have been understood by well-informed observers when it was ratified. My father contended that this approach made it very difficult for jurists simply to defer to their own preferred policy prescriptions or beliefs.
His vote in Texas v. Johnson illustrates this point because it defied the stereotypes and expectations of a rock-ribbed conservative Reagan appointee like himself. He once said, “You should be in no doubt that, patriotic conservative that I am, I detest the burning of the nation’s flag — and if I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.”
He defended his position on flag burning by arguing that the founders clearly did not conceive of speech as consisting of spoken words alone:
If you think the First Amendment covers only ‘speech’ and ‘press’ in the literal sense … you must believe that Congress can censor handwritten mail. Of course, ‘speech’ and ‘press’ are stand-ins for the expression of ideas — and that expression can be made through symbols and symbolic acts as well as through words. Semaphore and Morse code are covered, and so is the burning of a flag, a classic expression of disapproval or contempt for the government it represents.
Or as he put it in a 2012 interview with Piers Morgan, “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. I mean, that was the main kind of speech that tyrants would seek to suppress.” The Bill of Rights includes provisions that voters and officials will find inconvenient and distasteful, which is precisely why the founders included those provisions.
What about those who contend that the American flag deserves at least as much respect as other cultural or religious symbols? Take the instance of an Iowa man who was sentenced in 2019 to more than 15 years in prison for burning a pride flag. Why is he serving time while people who hate our country get off scot-free? There’s an undeniable appeal to that logic, but the situations under discussion are not as comparable as they first seem.
The most obvious reason is that the criminal in question, Adolfo Martinez, was burning someone else’s property. “There are plenty of would-be censors who would ban desecration of pride flags as so-called ‘hate speech,’” First Amendment lawyer Casey Mattox told me. “But because of decisions like Texas v. Johnson, I’m not aware of a single case of anyone being tried for burning their own pride flag.” Martinez tore a pride flag down from a church, doused it with lighter fluid, and burned it outside a gay club. This was after he had been involved in a verbal altercation. His criminal record was also taken into account. In no way is this comparable to a protester bringing his own flag to a rally and burning it.
Some supporters of Trump’s approach to flag burning contend that the justices in Texas v. Johnson simply made up a new right that had never been recognized before, overturning the laws of 48 states and a federal law in the process. This is a common, and often accurate, complaint about activist judges. Roe v. Wade’s discovery of a right to abortion is the most notorious example. Yet flag burning laws themselves are hardly as old as the republic. As Rehnquist noted in his Texas v. Johnson dissent, many states adopted them around the time of World War I.
Supporters of laws against flag burning also point to Halter v. Nebraska, a 1907 decision in which the court upheld a state law that prohibited the use of the flag on a commercial product. This, as Rehnquist suggested in his dissent, showed that there is some tradition of the law recognizing that the flag deserves special protection. Yet there’s more than a little irony in the administration of Trump, who markets branded sneakers featuring the American flag, finding support from a law “prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes.” Indeed, early laws against flag desecration were focused on commercial use of the flag.
It is clear that Trump issued the order to tee up opportunities to challenge the nuances of Texas v. Johnson. The order states that “the Attorney General … may pursue litigation to clarify the scope of the First Amendment exceptions in this area.” The administration may want to get flag burning cases to the courts so it can establish instances in which flag burning can amount to the proscribed category known as “fighting words” and therefore be prosecutable. But as Yale University’s Keith Whittington pointed out, this tactic “is unlikely to get anywhere new” because “the logic of the Court’s earlier flag burning opinions indicate that burning a flag cannot in itself be taken as a form of fighting words even if it is likely to arouse anger in observers.”
What if another flag burning case did wind its way to the Supreme Court? When my father voted with the majority in 1989, he was the lone originalist on the court. Today, thanks in large part to the excellent work Trump did during his first term, the court is dominated by originalists. But of course, originalists don’t always agree, so it’s possible that today’s originalists would differ with my father’s interpretation.
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It would also be interesting to see whether any enterprising congressional Republican would take this opportunity to propose a constitutional amendment against such desecration. This has been tried several times over the decades but never with the vocal support of a sitting president. It would still be a long shot, especially considering the necessity of state legislatures for ratification, but it would at least address the issue in a manner that acknowledges court precedent while also giving a more direct voice to voters.
But the passage of such an amendment would also elevate the foremost symbol of our great nation above the protection of liberties that make the symbol worth celebrating.
Christopher J. Scalia is a senior fellow at the American Enterprise Institute and the author of the new book 13 Novels Conservatives Will Love (but Probably Haven’t Read).
