In the advertising world, there is an old adage that there are times when you take a pitch and "run it up the flagpole to see who salutes." That expression came to mind Wednesday when President Donald Trump signed an order to punish flag burning. The president may be hoping the Supreme Court might salute and reverse long-standing precedent declaring flag burning to be protected speech under the First Amendment. If so, he is likely to be disappointed. The proposed prosecutions would be unconstitutional and, absent an unlikely major reversal of prior precedent by the court, flag burning will remain a protected form of free speech.
The Supreme Court has repeatedly, and correctly, declared flag desecration to be protected speech in such cases as Texas v. Johnson (1989) and United States v. Eichman (1990). The order seeks to evade those cases by focusing on acts that violate "applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment." When such violations occur, such as burning material within public lands or buildings, federal prosecutors would "prioritize the enforcement of… criminal and civil laws" such as "destruction of property laws" or "open burning restrictions."
The problem is that, while the law is content-neutral, the enhancement of the penalty by a year in jail is not. The whole point of the order is that it is content-based and thus unconstitutional.
The order makes the content-based criteria obvious by declaring flag burning "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."
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The test of free speech principles is your willingness to defend speech you find offensive or grotesque. For most of us, there are few acts more offensive than the burning of the American flag. That is precisely why extremists use those symbols to vent their rage.
That is the line that has been held by the Supreme Court, including by conservative icons like Justice Antonin Scalia. Scalia was the fifth vote in the Johnson decision that upheld flag burning in Texas. The majority opinion, written by Justice William Brennan, declared, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Despite objections from many, Scalia later again voted against a federal law that banned flag burning in Eichman.
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Scalia continued to defend his votes in public comments. He stressed, "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."
He later added:
"Yes, if I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress."
"Burning the flag is a form of expression. Speech doesn't just mean written or oral words. It could be semaphore. Burning a flag is a symbol that expresses an idea - 'I hate the government,' or 'the government is unjust,' whatever."
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Conservatives have long opposed falsely claimed "neutral" laws that targeted particular viewpoints. For example, in McCullen v. Coakley (2014), the court considered such a challenge to a Massachusetts law establishing a 35-foot buffer zone around abortion clinics barring speech activities.
The court unanimously found it still violated the Constitution. Notably, Scalia only concurred in the judgment while disagreeing with the reasoning of Chief Justice John Roberts in the majority. Scalia viewed the law as content-based and felt it should have been struck down under the highest burden of strict scrutiny.
Consider the implications of laws enhancing prosecution and penalties for selective speech. A liberal president could seek enhancements for views deemed hate speech or disinformation. Indeed, that is precisely the rationale used in other countries to selectively prosecute certain speech as "provocative," "offensive" or fueling violence.
In R.A.V. v. City of St. Paul (1992), the court struck down an ordinance that focused on fighting words that angered people based on "race, color, creed, religion or gender" as well as specific Nazi symbols.
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The majority opinion, written by Scalia and joined by Chief Justice William Rehnquist and Justices Anthony Kennedy, David Souter and Clarence Thomas, held that "the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."
As I discuss in my book, "The Indispensable Right: Free Speech in an Age of Rage," this type of prosecution has swept across Europe, where free speech is in free fall. Europeans yielded to the desire to target particular viewpoints and speech, a move that quickly snowballed into massive censorship and criminalization of speech. That included arresting people praying to themselves near abortion clinics and any protests deemed offensive to various groups.
Flag burners can still be prosecuted for burning material on streets or public property. However, those laws must be neutrally written and neutrally applied. Otherwise, Trump and others could seek a constitutional amendment to create an exception for flag burning under the First Amendment.
This is never an easy fight for free speech defenders. No one relishes being accused of defending flag burners. However, free speech often demands that we fight for the rights of those we despise or views we deplore. We do not need the First Amendment to protect popular speech.
Of course, the new order is a fight Trump likely believes he cannot lose. Even if he loses in court, he is seen as fighting a practice that remains uniformly unpopular with American voters. However, we should focus on defending the rights that define us as Americans.
Free speech is the very right that distinguishes us from even close allies - the indispensable and quintessential American right. It would be a tragic irony to protect the symbol of our nation by destroying the core rights that symbol represents.
This column was first published on the author's blog: Res ipsa loquitur - The thing itself speaks
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