As the roller coaster of the Trump administration continues — with seemingly endless ups and downs that would make even the most adrenaline-addicted among us yearn for an evening in with a nice cup of tea — the latest apparent executive overreach to come out of the White House is the president’s declaration that if anyone burns the American flag, “you get one year in jail, no early exits, no nothing.”
Paired with his pseudo-nationalization of Intel, socialism seems totally back in vogue.
His latest executive order, titled “Prosecuting Burning of the American Flag,” caused havoc online, with conservatives lamenting Trump’s apparent disregard for free expression which — as Texas v. Johnson determined in 1989 — constitutes “symbolic speech” protected by the First Amendment.
“Flag burning is vile but the government has no right to control speech or expression,” Dana Loesch said.
“This is actually not brilliant,” Erick Erickson wrote. “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.”
“First Amendment protections apply to the burning of the American flag, as much as I abhor that action,” posted Kimberly Ross.
“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,” responded Jesse Kelly. “I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.”
And, of course, Loesch, Erickson, Ross and Kelly are totally correct. But there’s another layer here: Despite Trump’s declaration that Americans should be thrown in jail for one year — no ifs, ands or buts — if they burn the flag, not only does he not have that authority, and not only does this further enable the absurd legal actions of leftists who want to jail anyone who gives the evil eye to a pride flag, this executive order doesn’t do what Trump says it does!
In reality, the order directs the Department of Justice to prosecute anyone who burns the American flag “to the maximum extent permitted by the Constitution,” which amounts to — again, as the Supreme Court has determined — nothing at all. While the order — for those who have actually bothered to read it — clearly claims that some forms of flag-burnings may not fall under such protections in the context of incitement, it does so while acknowledging the overarching authority of the Supreme Court’s decision.
Put simply, this executive order is more of a branding exercise, a marketing ploy designed to make a political and cultural statement without any real expectations of substantive legal action.
Frankly, the only meaningful and relevant line of the entire order is that the attorney general “may pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Because until we “clarify” the First Amendment — which, yes, does protect the despicable and abhorrent act of burning the American flag — this executive order is worth about as much as a midnight post on Truth Social.
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Author: Ian Haworth
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