The Volokh Conspiracy
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Trump's Flag-Burning Executive Order
More fodder for the culture war
Yesterday President Donald Trump signed a new executive order on the "burning of the American flag." As usual, the president decided to freelance a bit while signing the executive order in front of the cameras and declared that "you burn a flag, you get one year in jail." Now that would be an interesting executive order! But fortunately, the order he signed does not actually say that. In fact, it is so hemmed in by legal qualifications that it does not do much of anything at all. Other than, of course, provide the president with the opportunity to hold a press conference and excite his fans with some patriotic bluster.
What does the executive order actually do?
It begins by insisting
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).
As a legal tactic, this is unlikely to get anywhere new. The Court was clear that flag-burning as such is a constitutionally expressive activity despite the fact that such expression might well arouse intense passions. Existing precedent cannot be so easily avoided by simply declaring that burning a flag is a form of fighting words. The "fighting words" doctrine is a nearly moribund exception to traditional First Amendment protections, but the logic of the Court's earlier flag burning opinions indicate that burning a flag cannot in itself be taken as a form of fighting words even if it is likely to arouse anger in observers. Similarly, burning an American flag as such cannot, consistent with precedent, be understood as incitement.
But the order's follow-through on that statement is modest.
My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.
If you happen to violate the law while also burning a flag, then you are likely to be prosecuted for violating the law -- but not for burning a flag. The flag-burning adds nothing to the otherwise unlawful behavior, and flag-burning cannot in itself convert lawful behavior into unlawful behavior.
But then the order gives some directives, as executive orders are supposed to do.
The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation's criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans' civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.
So maybe this is sets some prosecutorial priorities. If you burn a flag while engaging in criminal activity, you get bumped to the front of the line for prosecution for that criminal activity. But this section of the executive order recognizes that the administration cannot invent new exceptions to well-established First Amendment principles regarding protected political expression, whether that expression takes the form of burning a flag or anything else.
And then there's this:
In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.
This might well encourage some local prosecutorial overreach, which courts will then have to correct. It might also send a signal to police to engage in the unlawful practice of arresting flag-burners for lawful activities even though nothing can come from the arrest. Prosecutors and magistrates might immediately let those arrestees go and decline to bring forward any charges or further punishment, but in the meantime a protester has been illegally, if briefly, detained.
Then there's a directive to the Department of Justice to engage in some precedent-setting litigation.
To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.
Good luck with that. The First Amendment has already been pretty well clarified on this question, and this is a very free-speech friendly Court. There's no evidence that the justices have any interest in reconsidering the holding in the flag burning cases.
But perhaps most consequential is this:
The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.
The executive order does not create any new bases for deporting a foreign national, but the order does potentially move flag burners to the front of the line in deportation cases.
The executive order is all about the vibes, and I'm sure many politicians and interest groups on both ends of the political spectrum will use this to energize the base and raise some more small-dollar donations. It does not, however, do much of anything to change existing law or policy.
