With carefully worded legal terms and patriotic sentiments, President Donald Trump on Monday announced an emphasis on prosecuting people who burn American flags.
Wyoming’s two U.S. Senators voiced their approval.
A leading First Amendment expert in the nation said prosecutions stemming from the order would be unconstitutional.
And a Wyoming-based attorney called it “just more shit-talking.”
The Order
Published Monday, Trump’s executive order calls the American flag “a special symbol in our national life that should unite and represent all Americans of every background and walk of life.”
“Desecrating it,” the president continued, “is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation.”
Burning the flag “may incite violence and riot,” the order says.
The U.S. Supreme Court has implemented First Amendment protections but hasn’t held that desecrating the American flag “in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected,” the president's order recounts.
It calls for the U.S. Attorney General to prioritize prosecution of the nation’s criminal and civil laws against American flag desecrations that happen in the course of other, tangential crimes.
Some examples, says the order, are peace disruptions, property destructions, hate crimes or illegal discrimination crimes.
The AG can also pursue litigation to clarify the scope of the First Amendment in this area, the order says.
But That Skews It
Eugene Volokh, distinguished research professor at UCLA School of Law and organizer of libertarian-leaning law blog the Volokh Conspiracy, said Monday that the order’s purported guardrails don’t go far enough to protect the First Amendment’s promise of freedom of speech.
That’s because the president is bootstrapping an anti-speech enforcement to laws that have nothing to do with speech.
“Content-neutral laws banning theft of government property, or starting fires in brush fire danger zones, are constitutional precisely because they are content-neutral,” wrote Volokh in a Monday email to Cowboy State Daily, which he reiterated in a later, Monday blog analyzing the order.
That means, the government can police those actions because the government doesn’t hinge its enforcement on what people say while doing them.
Trump’s attack on flag-burning as “uniquely offensive and provocative” is a “content-based, indeed viewpoint-based, enforcement policy,” wrote Volokh.
And that makes it unconstitutional, he added.
A recent (2023) case illustrating this point is Frederick Douglass Found v. D.C.
Thousands of protestors in 2020 flooded the D.C. streets to chalk and paint “Black Lives Matter” all over the storefronts and sidewalks – in violation of the district’s defacement ordinance.
None of them were arrested.
That same summer, D.C. police officers arrested two pro-life advocates in a smaller protest for chalking “Black Pre-Born Lives Matter” on a public sidewalk.
The court determined that the district’s unequal enforcement amounted to viewpoint discrimination – a First Amendment infringement.
The president’s reliance on prosecuting the unprotected speech of “fighting words” also doesn’t work, wrote Volokh.
Officials can prosecute people for using fighting words, based on U.S. case law, he noted, but they can’t enhance the prosecution of fighting words because they’re bound to some unpopular but otherwise protected expression.
Cracking Down
U.S. Sens. John Barrasso and Cynthia Lummis, both Republicans of Wyoming, voiced support Monday for the president’s order.
“In Wyoming, we honor the American flag - we don’t desecrate it,” said Lummis in a Monday email. “Our flag is not just fabric, it is the living symbol of freedom and liberty recognized around the world, defended by generations of brave Americans who gave their lives for it. It deserves nothing less than our highest respect.”
Lummis urged “ Democrats and left-wing protesters to stop this grotesque and offensive American flag burning and come together in treating the flag with the dignity and reverence it deserves.”
Barrasso echoed that in a Monday email from his office.
“The American flag is a symbol of freedom and independence. Our brave soldiers fight to defend our flag every day,” he said. “Many have died for our flag. I support President Trump’s executive order that establishes clear guidelines to prosecute flag burning crimes while respecting Supreme Court rulings. America’s flag must be treated with respect.”
Raining Though
Wyoming-based attorney Travis Helm, who specializes in immigration work, was so annoyed at the order he wanted to burn a flag.
It says non-citizens who burn flags can be deported if it's "under circumstances that permit" such an action.
Helm said targeting non-citizens' speech in this way marks just a step toward doing the same for citizens.
Trump’s attempts to ensconce the order in protective legal language is “just more shit-talking,” Helm insisted.
For example, Trump’s order says it “shall be implemented consistent with applicable law.”
“I don’t even feel like legal terminology applies,” said Helm. “It’s just more rampant authoritarianism.”
He quoted the late U.S. Supreme Court Justice Antonin Scalia, who once said, “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."
Helm looked out onto the streets of Laramie and contemplated leading a flag-burning, he said.
But it was raining.
Clair McFarland can be reached at clair@cowboystatedaily.com.
