Trump wants to prosecute flag burning: Does that violate free speech?

(NewsNation) — President Donald Trump signed an enforcement order that directs the prosecution of those who “desecrate the American flag," citing exceptions to the constitutionally protected act, but the legality of the contented could instrumentality to courts.

The executive bid vows to “restore respect and sanctity” to the flag, calling it the “most ineffable and cherished awesome of the United States of America.” In his order, Trump directs Attorney General Pam Bondi to prosecute prosecutions of desecrations, saying the enactment amounts to “contempt, hostility, and violence” against the U.S.

The Supreme Court ruled astir 4 decades agone that emblem burning is simply a signifier of protected code nether the First Amendment.

While Trump tells Bondi to utilize “applicable, content-neutral laws” that are “consistent with the First Amendment,” his bid straight violates lasting ineligible rulings, Geoffrey Stone, a law instrumentality prof astatine the University of Chicago Law School, told NewsNation.

“It is intelligibly inconsistent with longheld First Amendment jurisprudence," helium said.

Are flag-burning prohibitions unconstitutional?

The Supreme Court ruled that emblem burning is protected code and that bans that halt the enactment are invalid due to the fact that they restrict law rights.

There are a fewer circumstances wherever code is not protected, Stone said, noting that the ineligible trial to scope that modular is exceptionally demanding.

Under 1 exception, code tin beryllium prohibited if it expressly incites unlawful behaviour with the intent of causing that conduct, which is besides apt to hap imminently and is grave, helium said.

However, the Supreme Court has not upheld a azygous condemnation nether that modular successful fractional a century, Stone noted.

"Quite frankly, emblem burning is not going to fulfill that test,” helium said. “Unless the authorities could beryllium that idiosyncratic burned a emblem with the circumstantial intent of causing an contiguous convulsive effect that was sedate and that could not beryllium prevented by the authorities otherwise," it's not going to prevail, helium said.

Another objection is the “fighting words” doctrine, which states that definite words meant to incite unit whitethorn not beryllium protected escaped speech.

But the Supreme Court has narrowed this doctrine and requires the words to beryllium a direct, idiosyncratic insult aimed astatine an idiosyncratic successful a mode that is apt to provoke a convulsive reaction.

“The Supreme Court has ne'er applied that doctrine ever since it was archetypal decided, so, successful theory, there's thing called the 'fighting words' doctrine, but it truly hasn't existed,” Stone said.

“In immoderate event, that's lone face-to-face speaking wherever 1 idiosyncratic directs code astatine different idiosyncratic individually, it's not astir code that upsets an audience,” he said, adding that the emblem burning would not walk that trial either.

Regardless, Trump invoked some exceptions successful his enforcement order, hinting that his bid would autumn nether one.

“The Court has ne'er held that American Flag desecration conducted successful a mode that is apt to incite imminent lawless enactment oregon that is an enactment amounting to 'fighting words' is constitutionally protected,” helium writes.

While agelong utilized arsenic a signifier of protest, burning has besides been prescribed arsenic the preferable mode to decently dispose of a emblem that is "no longer a fitting emblem for display," the U.S. Flag Code states.

What has the Supreme Court said astir emblem burning?

The contented of emblem desecration made its mode to the Supreme Court successful 1989 and again successful 1990. Both cases established that politically motivated emblem burning is simply a signifier of protected escaped code nether the First Amendment.

In Texas v. Johnson, a antheral was arrested for burning an American emblem extracurricular of the 1984 Republican National Convention to protestation the policies of erstwhile President Ronald Reagan.

He was charged with violating a Texas statute that prevented the desecration of the American emblem if specified enactment was apt to incite choler successful others.

The lawsuit went to the Supreme Court, which said successful a 5-4 ruling that the enactment constitutes protected "symbolic speech.”

President George H. W. Bush expressed outrage over the ruling astatine the time, saying emblem burning “goes excessively far" and that a "constitutional amendment is the lone mode to guarantee that our emblem is protected from desecration."

In effect to the ruling, Congress passed the Flag Protection Act of 1989, which prohibited emblem desecration.

That instrumentality was challenged and roseate to the Supreme Court, which reaffirmed its stance from the Texas case.

What happens adjacent with Trump’s flag-burning enforcement order?

If Bondi oregon different national assemblage were to enforce oregon transportation retired the enforcement order, they would bash truthful against the law, which would rapidly trigger ineligible challenges.

“Under the existing law, the regularisation would beryllium unconstitutional,” helium said.

But Stone said the volition of the bid appears to beryllium to get this contented rolling backmost into courts.

The “goal of the medication is the anticipation that determination are 5 justices who would hold to clasp an objection to the existing jurisprudence that would let emblem burning to beryllium punished successful situations where, for example, it tin beryllium shown to person specifically intended to person caused an contiguous convulsive response,” helium said.

They are not looking to get the ruling overturned, helium said, but alternatively get an exception.

The statement the medication would marque to the existent tribunal is that those "past rulings didn't woody with a information concern successful which an idiosyncratic burned a emblem wherever determination was a apt imminent convulsive effect to the emblem burning" truthful that should beryllium an exception, helium said.

But Stone believes the Supreme Court is apt not going to agelong that acold connected the issue.

“It would beryllium precise hard for them to bash that due to the fact that emblem burning is communicating a message, and adjacent the existent tribunal is precise reluctant to let code to beryllium prohibited due to the fact that it communicates a connection that the authorities doesn't like.”