Trump Makes Flag Burning Illegal: Violating First Amendment Rights?

Donald Trump, amidst various other controversial developments of the day, autographed an executive order citing flag burning as an ‘illegal’ act. The edict mandated robust prosecution for violators, up to the maximum boundary of the law. He further put forth a proposal, not represented in the order, for offenders to receive a minimum jail term of one year. Sharing his thoughts with the press, he asserted, ‘A one-year sentence for burning the flag would ensure the practice is immediately halted.’

Nevertheless, the underlying bone of contention lies with the First Amendment’s constitutional rights protections. The underlying ideological framework is such that Trump can’t categorically enforce this outright. Observing the verdict from the 1989 case of Texas v. Johnson; flag burning was recognised as protected symbolic and political speech.

The deciding vote in this landmark case was cast by Antonin Scalia. He famously pronounced during a Union League event, ‘If I had it my way, I would charge anyone who desecrates the American flag, especially if they are scraggly-bearded, scruffy sandal-bearers.’ However, he readily admitted, ‘I am not a king.’

In a succeeding clarification, Scalia emphasized that the First Amendment’s main objective was to guard speech that remotely critiques the government – a notion which flag burning fundamentally embodies. Consequently, we now find ourselves with a head of state who envisions himself as an unchallenged monarch, forging ahead with his personal preferences.

So, how did passionate advocates for unrestricted speech react to Trump’s bold move to criminalize flag burning? They seemingly welcomed it! The primary supporting arguments unfolded humorously: Since burning a Pride flag is illegal, burning an American flag should be too! (Note: It is not illegal to burn a Pride flag given it belongs to you and it’s done safely.)

Altering perspective slightly, they justified Trump’s action by stating he’s isn’t directly criminalizing the act, he’s merely encouraging prosecutorial ingenuity in adding charges to the flag burners, thus deeming it entirely justifiable. It’s a win-win – even if it never practically takes shape, it forces liberals into a corner to defend flag burning, leading to public disdain.

At the extreme, supporters claim that the act of flag burning should be outright illegal – for reasons they’ve left largely unexplored. Concurrently, the Attorney General is directed to enforce the existing laws against acts of flag desecration that violate neutral laws and cause harm outside of their expressive nature, within the First Amendment’s constraints.

The broad enforcement range could include, but is not limited to, violent and hate crimes, illegal discrimination against American citizens, violation of civil rights, crimes against property and peace, conspiracy, attempts, and assistance to others in violating such laws.

However, the overriding fact is that the executive order blatantly pushes against constitutional boundaries. In one instance, this did not prevent the arrest of an American veteran who torched the flag as an act of protest against the executive order. But, in all reality, the public conversation surrounding this issue is irrelevant.

Those arguing that Trump’s primary intent is to rally his base and compel liberals to defend flag-burning are on point, despite the unsettling notion that they view this as an achievement. I, like many, wholeheartedly defend the act of flag-burning since it fundamentally represents the First Amendment’s freedom of speech values we hold dear.

We’ve come to face an era where the pervasive misunderstanding of the First Amendment has lead to its perceived relevance in the prevention of social media blocks, campus lecture protests, ‘cancel culture,’ and even the silencing of unsuccessful jokes. The Trump administration’s absolutely clear intentions to penalize individuals based on their beliefs has been an unhelpful addition.

Innocent students making a stand against Israel’s assault on Gaza have also been unrightfully targeted for their views. Additionally, penalties have been demanded against NBC and ABC following their own critical viewpoints concerning conservatives. Democratic voter’s stance on the First Amendment’s defense remains unshakeable, undeterred by these allegations.

This situation presents an opportunity to clarify what is truly protected under the right to free speech and to consistently remind the Right and others that disagreement with speech does not render it illegal. There are very few views I find myself in alignment with Antonin Scalia on, one rare instance being the Heller vs. DC opinion allowing for the prohibition of machine guns.

The fundamental essence of the First Amendment is to safeguard the right to protest against our government. Should we lose that right, we lose the very foundation of our democratic society.