Free Speech

President Trump Calls for Flag-Burning Bans

|The Volokh Conspiracy |

CNN reports (and you can hear the remarks at 43:15 of this audio):

President Donald Trump said Monday that he'd support laws criminalizing flag burning, saying in a call with governors that it's time for the Supreme Court to take up the issue again as nationwide protests have intensified over the death of George Floyd…. In Atlanta, protesters burned an American flag in front of CNN headquarters and photographers have captured images of flag burnings in Los Angeles and Washington state in recent days.

Trump, who as a candidate in 2016 proposed jail time or loss of citizenship for burning the American flag, called the act a "disgrace" on Monday and pledged support for an "anti-flag burning" statute.

"We have a different court and I think that it's time that we review that again. Because when I see flags being burned—they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them," the President told governors, according to audio of the call obtained by CNN. "They're weren't able to do it. They would've done it if we didn't stop them. I think it's time to relook at that issue, hopefully the Supreme Court will accept that…. If you wanted to try to pass a very powerful flag burning statute again—anti-flag burning, I hope you'll do it because we'll back you 100% all the way. Okay? I hope some of you do it."

As I discussed in detail in a 2009 law review article, Anglo-American law has treated symbolic expression, pictorial expression, and verbal expression analogously since before the Revolution. That notion was well embedded in American law by the time of Texas v. Johnson and U.S. v. Eichman, which held that the government can't target flagburning for punishment; same for the notion that speech can't be restricted just because it expresses an offensive or anti-American viewpoint.

I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result: If anything, the principle that the government can't ban speech based on its viewpoint has gotten even more support from the Court since then. See, e.g., Matal v. Tam (2017), which unanimously struck down a law that didn't even criminalize speech, but simply denied certain kinds of trademark protection based on the viewpoint that the trademark expressed. Nor are President Trump's Supreme Court appointees (Justices Gorsuch and Kavanaugh), I think, especially likely to vote to uphold it.

I doubt then, that any of the governors to whom President Trump was speaking would indeed encourage their friends in the legislature to reenact flagburning bans. (Indeed, I expect the President's proposal, like many proposals made by all sorts of politicians, wasn't genuinely aimed at trying to change the law here.) But if such a ban was reenacted, I'm quite confident it will get struck down, and I don't think that any briefing that the Justice Department would provide in support would change that.

[* * *]

Since we're talking about symbolic expression, I thought I'd pass along some colorful examples of symbolic expression during the Framing era (though my argument rests on much more specific legal sources):

The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. A leading English holiday, Guy Fawkes' Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a "Liberty Tree" (in that case, a large elm) various effigies, including a "devil … peep[ing] out of a boot—a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act"; "[t]he effigies were then paraded around town, beheaded, and burned." John Jay, coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly "wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold"—a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors."

English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the "King over the Water," which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts—representing Issue 45 of Wilkes' North Briton, which got him prosecuted for seditious libel and made him a star—were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was "eaten from plates marked 'No. 45′"; the Liberty Tree in Boston had its branches "thinned out so as to number forty-five."

Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side's cockades. Some conducted mock funerals for the other side's cockades …. Others raised liberty poles or burned "Liberty or Death" flags stripped from their adversaries' liberty poles. [I would add that stealing flags would certainly be punishable, though because they're stolen, not because it's offensive to burn them. -EV] Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.

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  1. Lots of angst and scorn here in the commentariat when a city council somewhere passes some dimwitted unconstitutional law. “Progressives want to destroy the constitution, they are un-American etc.” I’m sure Trump’s suggestions here will elicit similar outrage, since it’s all about the principle, it couldn’t have been bad faith partisanship.

    1. It’s posturing, just like everyone else in life. Get a grip.

      1. Yeah, that was kind of my point. And apparently “everyone else in life” doesn’t include Prof. Volokh, who calls out all unconstitutional actions regardless of the source.

      2. I agree with Mr. Jwpvsig, Jr. that President Trump is full of shit and should not be taken seriously by anybody.

  2. Does this mean it is legal to burn Trump in effigy, after desecrating the body in various symbolic ways?

    1. That is legal.

  3. Time to start burning some flags.

  4. How about only burn Chinese made American flags so everyone is happy??

    1. I would burn an American made American flag but I can’t find one. Any suggestions?

      1. Make one, Betsey.

      2. If there really are no American made American flags I suggest you start making them and advertise them on Fox News as “My American Flag” made from the finest American cotton that helps you become the best American that you can be! And then after you become a millionaire have the biggest ever flag burning with the profits from selling American made American flags.

        1. Just one addition to that–make sure to prominently display a Christian cross around your neck in the ads.

  5. Professor Volokh : “But if such a ban was reenacted, I’m quite confident it will get struck down, and I don’t think that any briefing that the Justice Department would provide in support would change that”

    But ya know Barr would make a spectacle of himself in the attempt. When it comes to whoring, he’s more obvious than your basic streetwalker wearing a thick slathering of makeup, lycra miniskirt, push-up brassiere & towering heels……

    1. You have some really disturbing fantasies.

      1. It’s doesn’t require any imagination at all to see Barr as a whore.

        1. Whores do it for money. Barr affixes his tongue to Trump’s scrotum for reasons that do not include money.

  6. As much as I support Trump in toto, he does go off on hairbrained tangents sometimes.

    Being a First Amendment absolutist, I have no issue with people burning flags, as long as they are not using them to set fires. It is political protest speech, and is protected.

    1. And so long as it’s their own flag. Basically, you should, legally, be entitled to burn a flag anywhere you can burn anything else, under exactly the same conditions and restrictions, no more, no less.

      Yes, Trump may be, operationally, the most libertarian President in living memory, but that’s more a commentary on how unlibertarian Presidents tend to be, it’s not praise of Trump.

      1. I can’t comprehend how you can reach this conclusion. He’s probably the least libertarian president since FDR. What metric are you using to call him “the most libertarian President”? He’s big spending, insisted on preserving most components of Obamacare, he’s signed more in short-term stimulus than any president in history, he’s anti free trade, his instincts are always authoritarian (see above).

        What libertarian policies has he espoused? Tax relief? Which President in your lifetime hasn’t promised tax relief?

        1. Lots of his signature accomplishments are anti libertarian. The border wall (and immigration approaches generally), trade war with China, opposition to legalization of marijuana (and continued enforcement of it in states that have legalized it), travel bans. I guess he tried to shut down government but that was so he could secure more spending for the border wall. He speaks fondly of authoritarians with no libertarian bent. Where is this coming from?

        2. Actually he didn’t just preserve Obamacare he strengthened it. Why you ask?? Because the Kushner family is heavily invested in the ACA Exchange subsidies. All of Trump’s executive orders concerning Obamacare have all “mysteriously” made Oscar Health more competitive in the Obamacare market…what a coincidence!

        3. What libertarian policies has he espoused? Tax relief?

          Tariffs are, of course, taxes, so not that.

          Not only that, but as Milton Friedman explained, spending is taxation. (You can borrow, but you eventually have to pay your lenders back, and that requires taxes.) Since Trump is the most free-spending president ever, he’s the biggest taxer ever.

          And spending without congressional authorization is doubly anti-libertarian.

          Don’t forget his anti-immigration agenda, which is also anti-libertarian.

  7. How about we just burn flag burners?

    1. Or how about we burn people who suggest burning flag burners?

      I support your thoughtful, well-reasoned, argument, and its logical extension(s).

    2. Flight-ER-Doc: ???

      santamonica811: Anything he can do, you can do meta.

  8. Trump may be, operationally, the most libertarian President in living memory,

    My monitor may be salvageable, but you definitely owe me a new keyboard.

    1. He’s the youngest, too.

    2. LOL

  9. Penn and Teller already proved how patriotic burning the flag can be.

    https://www.youtube.com/watch?v=cmG4GUjesig

  10. “I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result:”

    Those cases were a 5-4 non-ideological split. Since the, the court has upheld bans on pro-drug speech and Confederate flags on license plates. Both candidates in 2016 were supporters of bans on flag burning.

    Hopefully the court will do the right thing, but it’s far from clear that they will.

    1. What’s the “pro-drug speech” case? I ask because your reference to license plates suggests you’re mistaken about what the OP is talking about, or just trying to mislead.

      1. NToJ: Morse v. Frederick, in which the Court upheld disciplining a high school student for carrying a “BONG HiTS 4 JESUS” sign at a “school-sanctioned and school-supervised event” (though off-premises) event.

        1. Like you, I don’t think Morse speaks to a categorical “ban[] on pro-drug speech”.

    2. TwelveInchPainist: It seems pretty clear that the Court would not uphold bans on pro-drug speech by ordinary citizens, or bans on Confederate flags in your back window or on your bumper sticker. Say what you will about Morse v. Frederick and Walker v. Sons of Confederate Veterans (and I’ve criticized both decisions), but they were expressly and closely tied to the government’s role as K-12 educator disciplining students (Morse) and the government’s role as proprietor deciding what it prints on license plates (Walker). Neither of the cases offer any support at all for bans imposed by the government as sovereign, threatening ordinary citizens with prison for what they do with their own flags — nor do they suggest that the Justices in the majority in either of those cases would uphold such bans.

  11. Orange Jackass says something dumb. Film at 11:00.

  12. Or in other words, Speech for ME (i.e. his Twitter beef), but not for THEE.

    Typical Trump.

  13. When we retire a flag we burn it. Very respectfully; it is like a flag funeral. Of course the pundits and their rabid supporters trying to stir up trouble don’t even know that, which just shows how hypocritical they all are. They are posers not real Patriots. So, if the did make an unconstitutional law against flag burning, would the legislators be smart enough to include the exception, and how would that be handled?

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