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President Donald Trump and his administration are likely set to challenge a Supreme Court ruling that protected the burning of the American flag under the First Amendment with a new executive order calling for those who desecrate the U.S. flag while inciting violence or breaking other laws to face prosecution.
The executive order, which Trump signed Monday morning, directs the attorney general to prosecute those who violate laws “in ways that involve desecrating the flag,” and to pursue litigation that would clarify the scope of the First Amendment as it relates to flag desecration.
Burning the American flag, however, already has been litigated, with the Supreme Court ruling in 1989 that burning the flag is a form of symbolic speech that is protected by the First Amendment.
“I think what the president is saying, is that he’s ordering Attorney General Pam Bondi, Justice Department lawyers to prosecute those who maliciously burn an American flag,” Zack Smith, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told Fox News Digital Monday. “And what that would essentially do is tee up a challenge eventually for the Supreme Court to revisit and potentially overturn its prior precedent saying that burning an American flag is protected speech.”
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The 1989 case was centered on political protester Gregory Lee Johnson, who burned the American flag in 1984 outside the Republican National Convention in Dallas in protest of President Ronald Reagan’s re-election.
“America, the red, white, and blue, we spit on you,” protesters chanted as Johnson lit the flag on fire, according to details in the case, called Texas v. Johnson.
Johnson was charged under the Texas Venerated Objects Statute, a state law that prevented individuals from vandalizing respected objects such as the U.S. flag. Johnson was found guilty in 1985 and sentenced to one year behind bars and a $2,000 fine, but appealed the ruling.
The Supreme Court agreed to hear the case in 1989, with the nation’s highest court ruling in a 5–4 decision that burning the American flag was protected speech under the First Amendment. The Supreme Court held a conservative majority at the time.
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Justice William J. Brennan, a Democrat nominated by former President Dwight Eisenhower, issued the majority opinion, and argued “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
“We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag-burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by — as one witness here did — according its remains a respectful burial,” the majority opinion read. “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represent.”
Justices Thurgood Marshall, Harry A. Blackmun, Antonin Scalia and Anthony M. Kennedy joined Brennan in the majority opinion. Chief Justice Rehnquist authored the court’s dissenting opinion, arguing that the American flag holds a unique status in the U.S. that should protect it from acts such as burning.
In 1990, the Supreme Court reaffirmed its ruling the year prior, while invalidating Congress’ Flag Protection Act of 1989, which lawmakers passed in response to the Supreme Court’s Texas v. Johnson ruling.
Trump’s Monday executive order calls on the attorney general specifically to launch legal efforts to clarify “the scope of the First Amendment.”
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The executive order states: “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.”
Back in 2003, current Justice Clarence Thomas provided some insight into where he stands with the burning of venerated objects, offering a dissenting opinion in the case Virginia v. Black on the burning of crosses.
Thomas cited Rehnquist’s dissenting opinion in the Texas v. Johnson case in his 2003 dissenting opinion on cross-burning.
“In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson, 491 U. S. 397, 422-429 (1989) (REHNQUIST, C. J., dissenting) (describing the unique position of the American flag in our Nation’s 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter,” he wrote in 2003.
Smith pointed to two dynamics to watch out for with regard to a potential flag-burning case landing on Supreme Court’s docket in the future: that some justices have expressed “some concern that potentially expressive conduct has been read too broadly,” and how the justices will apply stare decisis, which is legal doctrine outlining courts should follow established precedents, such as the 1989 ruling.
“I think a couple of things are happening here,” he said. “I think some justices have expressed some concern that potentially expressive conduct has been read too broadly. Things that are really conduct, not speech, have been read to be protected, and maybe they should not be protected, as protected as they have been in the past.”
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“The other interesting dynamic, I think that you should watch for, is how certain justices will apply what’s known as stare decisis, and essentially that’s the fancy Latin term. It means that ‘they decided,’” Smith continued. “Several times recently, Chief Justice Roberts in particular, has said that even though he disagrees on the merits with the … decision the Supreme Court is reaching, he has joined the majority anyway because he believes stare decisis should apply and the court should not overturn or revisit its previous decisions in this area. Even though he may subsequently disagree with it.”
Trump celebrated the executive order during the Monday signing ceremony in the Oval Office, saying the 1989 Supreme Court ruling protecting flag burning was made by a “very sad court.”
“Flag burning. All over the country, they’re burning flags. All over the world, they burn the American flag,” he said. “And as you know, through a very sad court, I guess there was a 5 to 4 decision. They called it freedom of speech.”
“But there’s another reason, which is perhaps much more important,” he said. “It’s called death. Because what happens when you burn a flag is the area goes crazy. If you have hundreds of people, they go crazy.”
“You could do other things. You can burn this piece of paper,” he said. “But when you burn the American flag, it incites riots at levels that we’ve never seen before.”
First Amendment groups such as the Foundation for Individual Rights and Expression slammed the executive order in comment provided to Fox News Digital, saying Trump does not have the “power to revise the First Amendment with the stroke of a pen.”
“Flag burning as a form of political protest is protected by the First Amendment,” Foundation for Individual Rights and Expression Chief Counsel Bob Corn-Revere said in Monday comment. “That’s nothing new. While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it “uniquely offensive and provocative.”
“You don’t have to like flag burning,” he added. “You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say,.”
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