The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prosecutions Under New "Prosecuting Burning of the American Flag" Executive Order Would Violate First Amendment
And this is so even though the order targets flag desecration that could be punished under more neutral rules.
[1.] The order doesn't purport to cover all flag desecration, presumably recognizing that the Supreme Court has held that flag desecration as such can't be banned. See, e.g., Texas v. Johnson (1989); U.S. v. Eichman (1990). Rather, it covers desecration that violates "applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment." Thus, it seems to require that federal authorities, for instance, "prioritize the enforcement of … criminal and civil laws" as to "destruction of property laws" or "open burning restrictions." It might therefore cover desecration of a flag stolen from government property, or flag burning in a fire hazard zone on federal property.
[2.] This having been said, content-neutral laws banning theft of government property, or starting fires in brush fire danger zones, are constitutional precisely because they are content-neutral. But the Order expressly targets flag desecration that violates those laws because it communicates a "uniquely offensive and provocative" of "contempt, hostility, and violence against our Nation—the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security." That is a content-based, indeed viewpoint-based, enforcement policy.
And such content-based selective enforcement is itself unconstitutional. Thus, for instance, the Supreme Court recognized in McCullen v. Coakley (2014) that even if a restriction on speech outside abortion clinics is facially content-neutral, if the police do not "enforce" it "equally against clinic escorts" and instead selectively target anti-abortion protesters, "such allegations might state a claim of official viewpoint discrimination."
And the Court favorably cited Hoye v. City of Oakland (9th Cir. 2011), which found unconstitutional the "selective enforcement [against anti-abortion protesters] of a similar [facially content-neutral] ordinance." In Hoye's words, because "Oakland has acknowledged having a policy of enforcing the Ordinance based on the content of speech," "[t]hat policy is unconstitutional":
Oakland's enforcement policy is a constitutionally invalid, content-based regulation of speech. By adopting that policy, Oakland has taken sides in a public debate in a manner that … the Constitution does not permit.
Or consider Judge Neomi Rao's opinion in Frederick Douglass Found. v. D.C. (D.C. Cir. 2023):
This case concerns a constitutional challenge to the selective enforcement of the District of Columbia's defacement ordinance against some viewpoints but not others.
In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim "Black Lives Matter." Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking "Black Pre-Born Lives Matter" on a public sidewalk….
The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America…, sued…. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation's First Amendment claim ….
[3.] The same applies if the policy mandated by the order is used to prosecute someone for flag burning in a context that constitutes "fighting words" (i.e., in Texas v. Johnson's words, "a direct personal insult or an invitation to exchange fisticuffs" [emphasis added]). The order appears to expressly contemplate that, both by mentioning "fighting words" and by mentioning "disorderly conduct laws."
R.A.V. v. City of St. Paul (1992) held that "selective regulation" of fighting words based on their particular message is generally unconstitutional, even though punishing fighting words solely because of their tendency to promote a fight (regardless of any additional message) is constitutionally permissible. R.A.V. struck down an ordinance that facially targeted fighting words that angered people based on race, religion, and the like, but the same logic would apply to the Executive Order, which facially targets fighting words that anger people because they involve or are accompanied by flag desecration.
[4.] So if the government neutrally punishes people who damage government property, or start dangerous fires, it is free to do so. See, e.g., City of Columbus v. Meyer (Ohio Ct. App. 2003) (upholding a conviction for burning a flag under a generally applicable fire prevention ordinance); Bohmfalk v. City of San Antonio (W.D. Tex. 2010) (concluding that an arrest in such a case didn't violate the First Amendment). But here the government targets flag desecration precisely based on the content (and indeed based on the viewpoint) of the message that people are expressing. That violates the First Amendment.
[5.] Finally, the Order contemplates deporting and otherwise denying immigration benefits to aliens who desecrate the flag, "under circumstances that permit the exercise of such remedies pursuant to Federal law." Whether deportation of aliens based on their speech is constitutional is unsettled.
