In his inaugural address on Jan. 20, President Donald Trump explained that “after years and years of illegal and unconstitutional federal efforts to restrict free expression, I also will sign an executive order to immediately stop all government censorship and bring back free speech to America.”
Trump’s Monday executive order calling for prosecutions of those who burn the U.S. flag reminds us that his inaugural pledge was a hollow one. As Trump put it, “If you burn a flag, you get one year in jail.” The language of Trump’s executive order makes clear that his lawyers know this isn’t very serious stuff. Observing the Supreme Court case of Texas v. Johnson, which upheld the constitutionality of flag burning, the order calls for prosecutions where flag burnings threaten or lead to imminent lawless action. This is a reference to the imminent lawless action test under the Supreme Court case of Brandenburg v. Ohio. That test requires that speech rising to the level of criminal incitement both intends to provoke imminent unlawful activity, such as a riot, and will likely do so in a timely fashion.
Again, however, Texas v. Johnson makes explicitly clear that flag burning is protected speech. An example of actual criminal incitement would be something like a Nazi militia leader standing outside a synagogue shouting, “We must kill these Jews,” to an armed and emotional mob that is absolutely loyal to the militia leader.
Still, Trump’s executive order also makes itself redundant by its recognition that government restrictions on speech must be “content neutral,” or unrelated to the specific political argument in question. In turn, as abundant Supreme Court case law further clarifies, even were the Justice Department somehow successful in prosecuting flag burners, because of constitutional law’s “content neutral” requirements, any flag-burning convictions would quickly lead to prosecutions for numerous other offenses, such as the burning of Qurans, for example.
Sadly, this is only the tip of the iceberg when it comes to Trump’s disregard for free speech.
Since reentering office, Trump has repeatedly undermined the First Amendment. Angry at their criticisms of him, Trump has pulled government security details from former officials facing assassination threats from Iran. He has bullied law firms into supporting his political agenda. He has withheld federal grants to pressure educational institutions not simply and justifiably to enforce civil rights laws, but to adopt curricula that he favors. Similarly, he has empowered the State Department to expel not just foreign students who break laws or harass their fellow students, but also those who offer opinions with which Trump’s administration disagrees. There are indications that Trump is also now using the Justice Department to go after his political enemies.
TRUMP’S UTTERLY INCOHERENT UKRAINE STRATEGY
This record renders hypocritical the Trump administration’s otherwise accurate and important condemnation of Europe’s crackdown on free speech.
Trump should remember his twice-made oath to “preserve, protect, and defend the Constitution of the United States.”