President Donald Trump on Monday unveiled a series of executive orders aimed at further curtailing crime and disorder nationwide. Among them was one requiring the attorney general to prioritize, to the greatest extent possible, the prosecution of those who burn the American flag.
The order prompted predictable (and probably intended) backlash on social media, with many arguing that it violated the First Amendment. This is not accurate: the order is carefully framed to permit prosecution only when a flag is burned in a way that is not otherwise protected speech—namely, when its burning incites “imminent lawless action” or constitutes “fighting words.” This framing means that the order probably complies with Texas v. Johnson, the 1989 Supreme Court decision that found that flag burning is protected speech. But it also means the order is functionally toothless.
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That can be remedied. The president’s well-documented affection for the flag is consistent with public opinion, which has long disdained expressive flag burning. There’s a simple way for Trump to square these beliefs with the text of the Constitution: call on Congress and the states to honor the upcoming 250th anniversary of the nation by passing an amendment banning the burning of American flags.
The special status of the flag—as the symbol of the nation and of the constitutional order that secures our liberty—has long made it an object of affection among the general population and derision on the radical fringes. Flag burning was a popular mode of protest during the Vietnam War, prompting the passage of a national Flag Protection Act in 1968. By 1989, 48 states also had laws on the books prohibiting flag burning, though most were passed at the end of the nineteenth or beginning of the twentieth centuries.
In 1989, though, the case of Gregory Lee Johnson—a member of the youth wing of the Revolutionary Communist Party, USA—came before the Supreme Court. Johnson had been arrested for burning a flag in protest of the 1984 Republican National Convention in Dallas and charged under Texas’s flag-desecration statute. Johnson argued that the state had deprived him of his First Amendment right to destroy the nation’s preeminent symbol.
The Court ruled by a 5–4 margin that he was correct, and that flag burning was protected by the First Amendment. The vote crossed ideological lines, with Justice Antonin Scalia joining his liberal colleagues to overturn the ban. (Famously, the decision prompted Scalia’s wife to whistle “You’re a Grand Old Flag” as she served him breakfast the next morning.)
The majority predicted that its decision would mean that “the flag’s deservedly cherished place in our community will be strengthened, not weakened.” It’s hard to agree with that sentiment. As late as 2004, former Nebraska senator Bob Kerrey could testify, “I can count on one hand the number of times I have witnessed, either in person or on television, someone burning the American flag.” But today, it is trivial to find footage of flag desecration online. Perhaps not coincidentally, patriotism runs at historic lows.
The Court’s ruling depended not so much on settled tradition as on the twists and turns of twentieth-century free speech law—a series of oddities established following the Court’s abandonment, during the New Deal, of the “no prior restraint” definition of free speech. As late as 1969, Justices Earl Warren, Hugo Black, and Abe Fortas all said they would permit the prohibition on flag burning (Street v. New York), and in 1974, Justice Byron White indicated the same (Spence v. Washington).
As Chad Flanders, professor of law at St. Louis University, has argued, even a more originalist Court might have ruled a different way in Johnson. Cases from the colonial period and the Civil War seem to have allowed bans on flag desecration, and the Court upheld a flag desecration statute as late as 1907. While Flanders concludes that an originalist could reach the majority’s conclusion, he argues that this outcome is far less obvious than we might expect.
More sensible, perhaps, is Chief Justice William Rehnquist’s dissent in Johnson, which argued in part that “the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace.” This formula, from 1942’s Chaplinsky v. New Hampshire, would have established flag burning as “low-value speech,” not worthy of constitutional protection where it imperiled public order or decency.
“The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas,” Rehnquist wrote. “Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.” He could not agree “that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.” The Court was installing itself in the role of “a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren,” overriding the express will of the people in doing so.
“Surely,” Rehnquist wrote, “one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning.”
Still, the current Court, which is both wary of overturning precedent and vigorous in its defense of free speech, is unlikely to revisit Johnson. That leaves only one other avenue for prohibiting flag burning: a constitutional amendment.
An amendment giving Congress the power “to prohibit the physical desecration of the flag of the United States” has passed the House before (though not the Senate). Such an amendment also enjoys popular support. In 2006, Pew reported, “Nearly three-in-four say flag burning should be illegal. Roughly half say it should be unconstitutional.” In a June 2020 poll—at the height of progressive insanity—a plurality of Americans still said flag burning should be illegal.
Republicans do not have the requisite two-thirds majority to pass an amendment unilaterally. But if Speaker Mike Johnson and Senate Majority Leader Mike Thune introduced such a proposal (and they would, if Trump asked them to), they might scare up sufficient votes from more patriotic Democrats to advance the measure to the states. Failing that, they would put dozens of Democrats on the record as believing flag burning should not be banned—even when doing so would not contravene the First Amendment.
What better way to honor America’s upcoming semiquincentennial than with a rousing debate over the sanctity our flag? If we can’t protect it from desecration, let us at least force our leaders to take a stand for or against doing so.
Photo by Michael Ciaglo/Getty Images
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