Trump’s ‘Prosecuting Burning of the American Flag’ executive order is ill-conceived.

I don’t want to get too deep into more of President Trump’s schtick: finding 80-20 issues (he calls them “97/3” issues) to get Democrats on the wrong side of a public debate. It’s a real skill, a big part of his secret sauce. I already have something posted today regarding Monday’s wayward executive orders purporting to outlaw (or at least deeply discourage) progressive-Democratic cashless bail policies.

We also have the “Prosecuting Burning of the American Flag” executive order, which is just more pot stirring. I’ll make two points.

First, even Trump grudgingly acknowledges in the EO that the Supreme Court in Texas v. Johnson (1989) held that criminal laws criminalizing the desecration of Old Glory are unconstitutional under the First Amendment. Considerably better and more famous than the 5-4 majority opinion (written by Justice William Brennan, a progressive) is the late great Justice Antonin Scalia’s commentary on the subject (some flavor of which his son, Christopher Scalia, has posted on X). For what it’s worth, although I think Scalia and the Court were probably right, there was a great deal of persuasive force in Chief Justice William Rehnquist’s dissent in the flag-burning case. But at this point, the law is settled and the chance that it will become unsettled are close to nil.

The president and his legal advisers want to have it both ways: While the EO nods to Texas v. Johnson, it claims that the case didn’t settle the question whether the Constitution protects “American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words.’” This is ill-conceived.

The president is referring to the law of incitement, which is different from flag burning. Under Texas v. Johnson, flag burning, by itself, cannot be prosecutable as fighting words, a traditional exception to First Amendment free expression. (See Chaplinsky v. New Hampshire (1942).) Taken alone, such flag desecration is the fighting words — the provocation. Obviously, the Supreme Court’s ruling means free-expression principles bar prosecuting it on those grounds. The First Amendment does not indulge the “heckler’s veto”; if a person burns a flag and this action triggers someone to a violent response, the Court’s ruling means the violent response is the illegal action (or overreaction), not that the provocative expressive conduct was illegal.

On the other hand, if flag desecration were a part of a multi-faceted episode by which someone or some group of people incited lawless action, then the prosecution would be against incitement, not flag burning. The question for the court and jury would be whether the entire course of conduct amounted to an illegal summons to imminent lawless action. That is, the flag desecration, standing on its own, could not be prosecuted; but neither would the flag burning be a defense if, in conjunction with it, the defendant performed other inciteful actions (such as openly calling for people to attack a government building).

Second, while I was on vacation, I finally decided that the American flags I’d been flying for over a decade — through scorching sunshine, wind, rain, snow . . . — should be replaced. It’s a grand thing to live in a country where you can order a couple of flags on Amazon in the late afternoon and find them at your doorstep the next morning. It is an even grander thing to live in a town in which so many residents fly the Stars and Stripes that care is taken to respectfully dispose of one’s old flags when the replacements arise. For example, our police department has a depository: You drop them in, they handle the rest.

Again, it had been many years since I’d had this situation, so once I hoisted up the new flags, I did some research on the current thinking (and statutes!) for the proper methods of disposing flags that are past their prime. Sure enough, in Section 8(k) of Title 4, U.S. Code (“The Flag”), Congress has provided:

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. [Emphasis added.]

I thought about firing up the driveway. I guess I’m glad I decided, instead, to let the cops handle it.