President Donald Trump‘s decision to sign an executive order seeking to punish those who burn the American flag drew sharp backlash from longtime conservatives who criticized the administration for violating free speech protections.
Why It Matters
Trump’s executive order, which he signed Monday, defies longstanding Supreme Court precedent. The High Court issued a landmark 5-4 ruling in 1989 saying that burning the flag is protected by the First Amendment because it constitutes symbolic and political speech.
Justice William Brennan wrote at the time that the government could not prohibit expression merely because it’s offensive.
What To Know
Trump’s executive order says the Department of Justice should bring federal cases “against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.”
The laws referenced in Trump’s order include “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace.”
The president’s executive action ignited harsh blowback from conservative media figures, as well as from the son of late Supreme Court Justice Antonin Scalia, who is widely considered one of the most conservative justices to serve on the bench.
“This is actually not brilliant,” the right-wing broadcaster Erick Erickson wrote on X. “While I agree with the sentiment, it is unfortunately well settled constitutional law that burning the flag is a matter of free speech and the executive does not get to create crimes.”
Brit Hume, the chief political analyst on Fox News, wrote on X: “George HW Bush ran against flag burning in 1988 and spent a whole week campaigning on the issue. But he called for a constitutional amendment to ban the practice. He didn’t pretend he could ban it by an executive order that flies in the face of constitutional speech protections. C’mon man.”
Jesse Kelly, the host of the conservative talk radio show “The Jesse Kelly Show,” wrote on X: “I would never in a million years harm the American flag. But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.”
The White House doubled down on Trump’s order when reached for comment on Monday, with a spokesperson telling Newsweek: “President Trump will not allow the American Flag – a special symbol of our country’s greatness – to be used as a tool to incite violence and riots that jeopardize the safety of everyday Americans.”
The spokesperson added: “President Trump will always protect the First Amendment, while simultaneously implementing commonsense, tough-on-crime policies to prevent violence and chaos.”
Trump’s Monday executive order said that people who are prosecuted in connection to burning the American flag could face as much as one year in jail. Non-citizens who face prosecution could have their visas or immigration benefits revoked and may also face removal from the country, the order said.
What People Are Saying
President Donald Trump said while signing the order: “They burn the American flag. They call it freedom of speech. When you burn a flag, the area goes crazy. If you have hundreds of people, they go crazy. You can do other things…but when you burn the American flag, it incites riots at levels we’ve never seen before.”
Casey Mattox, a conservative constitutional lawyer, wrote on X in response to Trump signing the executive order: “I anticipate significantly more flag burnings in the weeks ahead.”
Erickson wrote on X: “We are about to see a wave of flag burnings and not one of those burning flags will be found guilty of breaking the law.”
Christopher Scalia, a senior fellow at the American Enterprise Institute and the son of the late Supreme Court Justice Antonin Scalia, quoted his father, writing on X: “‘You should be in no doubt that, patriotic conservative that I am, I detest the burning of the nation’s flag—and if I were king I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.’ – Justice Antonin Scalia.”
What Happens Next
A man was arrested for burning the American flag near the White House hours after Trump signed his executive order on Monday. The U.S. Secret Service and the Park Police confirmed the man’s detention and arrest to Newsweek.
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