President Donald Trump has a flair for the dramatic, and that was on full display Monday when he signed an executive order titled “Prosecuting Burning of the American Flag.” “You burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month,” Trump said. “You get one year in jail, and it goes on your record, and you will see flag burning stopping immediately.”
Which would be quite an unconstitutional statement on a number of grounds, most prominently that no president can create new criminal laws with the stroke of a pen. But the actual wording of the executive order itself is much more limited than Trump’s rhetoric would suggest and signals a welcome change in the protection and respect our federal government pays to symbols of national unity.
“The American flag, throughout more than 200 years of our history,” Chief Justice William Rehnquist wrote in his dissent in Texas v. Johnson, “has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”
Rehnquist and his fellow dissenter, Justice John Paul Stevens, would have kept the 48 state laws and the federal statute making flag desecration a crime, arguing that while the First Amendment does protect speech, it does not protect all speech, including speech likely to incite violence.
Trump’s executive order doesn’t even go that far. Instead, it directs the attorney general to “prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.”
If this executive order had been in effect, the defendant in Texas v. Johnson would have gone to jail, where he belongs. Contrary to popular belief, the defendant did not own the flag he burned. It had been stolen from a flagpole along the protest route, a protest that included the vandalism of multiple buildings and the destruction of potted plants.
Theft and destruction of private property are crimes. And just because the property stolen is a flag and some America-hating protester decides to burn it, doesn’t afford the illegal act some kind of magical First Amendment protection. A crime should be a crime, whether or not Democrats approve of the political message motivating the crime. All Trump’s executive order does is instruct federal law enforcement to vigorously enforce existing law when the underlying incident involves an American flag. That is perfectly appropriate, even laudatory, prosecutorial emphasis on law enforcement.
At a time when Democratic prosecutors are going after children on scooters for driving over LGBT pride flags painted on the street, a Republican president has every right to remind the public what the symbols are that truly unite us as a people, not divide us.
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“The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,” Stevens wrote in his Texas v. Johnson dissent. “If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”
Our flag is worthy of protection. Finally, we have a president willing to protect it.