Trump signs executive order directing prosecution of flag desecration despite 1989 Supreme Court ruling protecting flag burning as First Amendment speech.
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. »
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.
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.
