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Scroll to the bottom for a note from Aaron about the mass shooting yesterday in Minneapolis.
On Monday, President Trump announced out of nowhere that he’s banning flag burning.
“It’s called death! What happens when you burn a flag is the area goes crazy.” Trump babbled incoherently as he signed the executive order. “When you burn the American flag, it incites riots at levels people have never seen before.”
This is a transparent attempt to transform protected speech into criminal conduct, despite decades of Supreme Court precedent barring just that. And it was immediately challenged by Jay Carey, an army veteran who set fire to an American flag in Lafayette Park across from the White House.
Note that, despite Trump’s bloviating, the crowd did not “go crazy.” Carey was taken into custody without incident, and, as of this writing, has yet to be charged.
Texas v. Johnson
Trump’s executive order bizarrely justifies itself by pointing to the very Supreme Court case that protected flag banning as justification for his purported ban:
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).
Texas v. Johnson involved an avowed communist named Gregory Johnson who burned an American flag outside the Dallas City Hall to protest the renomination of Ronald Reagan at the 1984 RNC. He was convicted of desecrating a venerated object under Texas Penal Code and sentenced to a year in jail and a $2,000 fine.
The Texas Supreme Court reversed the conviction, and the state appealed to the US Supreme Court. In a 5-4 ruling, the majority, which included progressive Justice William Brennan and arch conservative Justice Antonin Scalia, held that flag burning is expressive conduct protected by the First Amendment.
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The minority, including Chief Justice Rehnquist, Justice Sandra Day O’Connor, and liberal Justice John Paul Stevens, huffed that the flag occupied a special place in American consciousness, making its desecration deeply offensive to most Americans. But the majority wasn’t having it: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Congress gamely tried again, passing the Flag Desecration Penalties Act, making it illegal to burn a flag nationwide. And once again, the Supreme Court ruled 5-4 in a case called US v. Eichman that flag burning is expressive conduct protected by the First Amendment.
“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered,