President Donald Trump sees an epidemic of flag burning and says it wants consideration.
“All over the country they’re burning flags,” Trump mentioned Monday in the Oval Office, declaring it an essential concern. He signed an executive order directing his Justice Department to analyze incidents of flag burning the place legal guidelines are damaged.
There are a number of issues along with his declare, the first of which is that it’s by no means clear they’re burning flags throughout the nation.
There are incidents of flag burning at protests, certainly, reminiscent of when pro-Palestinian protesters burned an American flag alongside Israeli Prime Minister Benjamin Netanyahu’s deal with to Congress final 12 months.
That burning drew bipartisan opposition. Then-Vice President Kamala Harris condemned the act and mentioned the flag “should never be desecrated in that way.”
But past the query of whether or not flags are certainly being burned throughout the nation is the undeniable fact that the Supreme Court, again in 1989, declared flag burning to be a protected type of speech underneath the First Amendment.
Trump acknowledged that call by a “sad” Supreme Court, and his government order is seemingly written to deal with the Supreme Court’s flag burning choices.
The administration will attempt to prosecute different crimes, like violent crimes, hate crimes and crimes “against property and the peace,” as a method to deter flag burning, based on a White House fact sheet.
Trump spoke to that Supreme Court determination when he mentioned the easy act of burning the flag is an incitement.
Trump:
A landmark determination
The Supreme Court of 1989 felt otherwise when it thought of the case of Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade who broke Texas state legislation when, exterior the 1984 Republican National Convention, he doused a flag in kerosene and lit it on hearth.
Most states — 48, based on a New York Times report at the time — then had legal guidelines to outlaw flag burning. So the court docket, when it determined the case, created a brand new proper of expression for many Americans.
“… The Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression,” Justice William Brennan wrote for the majority.
Flag burning doesn’t, on its personal, represent “fighting words,” the court docket held.
Trump desires to prosecute anybody whose flag burning does incite violence, based on his order. At the very least, this can be an invite to get the Supreme Court to take one other look.
The determination minimize throughout ideological traces, based on NCS’s chief Supreme Court analyst Joan Biskupic.
Brennan, who wrote the determination, was a liberal, however the five-justice majority included the frequent swing vote Justice Anthony Kennedy and the strident conservative Justice Antonin Scalia.
In an e mail, Biskupic defined how the case break up the justices:
Congress, displeased, handed a legislation that spoke to the 1989 determination, and tried to outlaw flag burning regardless of the Supreme Court’s determination.
The Court, in 1990, rapidly responded to Congress in a unique case and reaffirmed that flag burning is protected speech.
“The main kind of speech that tyrants would seek to suppress”
Years later, in 2012, Scalia spoke at length about flag burning throughout an interview with Piers Morgan on NCS.
Scalia:
Scalia later added that flag burning was not a type of rebel.
“That’s just saying we dislike the government. It’s not urging people to take up arms against the government. That’s something quite different,” he mentioned.
In 2006, at the peak of the unpopular US conflict in Iraq, the Senate got here inside one vote of proposing a constitutional modification to ban flag burning.
It was Republicans’ chief at the time, Sen. Mitch McConnell of Kentucky, who forged the deciding vote to defeat the proposal, which required a two-thirds majority, normally 67 of 100 votes, underneath the Constitution.
The reply to flag burning, McConnell argued in a 2006 op-ed in Kentucky, was extra freedom, not much less.
Now, nevertheless, Republicans in the Senate are led by Sen. John Thune, the South Dakotan who has known as for passage of a constitutional modification to outlaw flag burning.
Trump has lengthy spoken towards flag burning. After the 2016 election, he prompt that individuals who burn the American flag ought to forfeit their citizenship.
While the Supreme Court has protected Americans’ proper to burn the flag in protest, most Americans oppose flag burning. In a 2021 ballot from the Knight Foundation and Ipsos, solely 31% of Americans agreed that folks ought to be allowed to burn the American flag. More just lately, two-thirds of Americans mentioned in a YouGov/CBS ballot printed in July that flag burning ought to be towards the legislation. Back when the Supreme Court dominated that flag burning was protected speech, it was an unpopular determination.
More than two-thirds of Americans supported a constitutional modification to outlaw flag burning, according to polling at the time, though solely a minority noticed that concern as an important one.
Over time, the nation’s urge for food for a constitutional modification on flag burning waned. By 1998, a ballot from ABC News and the Washington Post discovered a near-even break up over whether or not to amend the Constitution to make flag burning unlawful (51% supported that modification, 48% mentioned go away the Constitution as is), and in 2006, a Gallup/USA Today ballot discovered 54% saying “the Constitution should not be amended to specifically prohibit flag burning or desecration.”
Alito and flags
It’s not clear how the present Supreme Court would possibly view flag burning ought to the concern come to their consideration on account of Trump’s government order.
At least one present Supreme Court justice has firsthand expertise with manipulating the American flag to make a political level. Justice Samuel Alito’s spouse flew the flag upside down at their Virginia residence in January of 2021, days earlier than President Joe Biden was set to take workplace. Alito mentioned he had nothing to do with the gesture, however that it was his spouse, a lover of flags, who flew the flag upside-down in the midst of a spat with their neighbor.