On Monday, August 25, President Donald Trump signed a trio of executive orders that have managed to cause more confusion than clarity. Much of the ambiguity comes from what seems to be purposeful obfuscation by the Fourth Estate. The orders concerned the burning if US flags and cash bail, and perhaps unsurprisingly, heads are spinning on social media as the public, both pro and anti-Trump, attempt to grapple with what the president wants to achieve.
Red Flag Reporting
Within hours of the order titled “Prosecuting the Burning of the American Flag” being signed, most major media outlets rushed to consult their Supreme Court almanac to determine, that setting fire to the US flag is, indeed, protected under the First Amendment. This became the dominant narrative: Trump defies free speech. But perhaps the actual order should have taken precedence in their research rubric.
Certainly, the Supreme Court ruled, 1989, in Texas v. Johnson, that such an act was symbolic speech and therefore protected under the Constitution. However, Trump’s EO appears not to run afoul of that landmark ruling. Here’s what is actually says:
“Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.”
It further states that “My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.” And here’s the rub: it seems that even with this new order, folks can continue to burn US flags to their hearts’ content, as long as they are not doing it as part of either another crime or with the intent to incite violence. So what does it do?
Like a Bonus, But Bad
The order instructs 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.” To clarify, the AG should prosecute based on existing laws while making sure not to violate free speech provisions. Naturally, this was not the position promulgated by the nation’s press.
And to be resoundingly clear, such prosecutions already take place.
In 2019, Adolfo Martinez was sentenced to 16 years in jail, ostensibly for burning an LGBTQ Pride flag. The scale of the sentence caused outrage among many, and equal parts joy among others. In fact, the specific charges were, as reported by NBC at the time, “15 years for the hate crime of arson and given a year for reckless use of explosives or fire and 30 days for harassment.”
A “hate crime” isn’t a stand-alone crime, it’s a “sentence enhancement.” As law firm Greg Hill & Associates explains:
“The sentence enhancement for someone who commits of attempts to commit what is defined as a ‘hate crime’ faces an additional one, two or three years in state prison. Penal Code § 422.75. Such crimes are most commonly vandalism, assault battery, assault with a deadly weapon, criminal threats, attempted murder, murder and mayhem. It could also be disturbing the peace or trespass by interfering with a religious meeting (a separate crime punishable under Penal Code § 302) or disturbing a public meeting (Penal Code § 402).”
When President Trump declared during the signing that people who burn the flag will get “one year in prison,” it was most likely that this is what he was referring to.
Aims or Aimless?
Justice Antonin Scalia outlined his position as the swing vote in the five to four Johnson v. Texas, and the case that followed a year later* on flag desecration, saying:
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag… But I am not king.”
And while the president took some rare heat on social media from usual allies, there were also defenders. One such came from Ed Whelan, Ethics and Public Policy Center’s Antonin Scalia Chair in Constitutional Studies, who wrote, “President Trump’s executive order on flag-burning is replete with qualifiers that strip it of any discernible meaning. ‘To the fullest extent possible’ sounds aggressive, but it actually means ‘within the bounds permitted by law.’” Hardly a full-throated defense of the order, but a position that begs the question: what does the president hope to achieve?
Donald Trump has a long history of defending and promoting Old Glory. Iconic photos of him embracing the US flag are plentiful, and he has even paid out of his own pocket to have two flagpoles erected on the White House grounds. He has made numerous comments in the past regarding what he sees as appropriate punishments for flag desecration, but the latest executive order falls short of his personal proclamations.
Gentle provocation has been a significant element of Trump’s policy agenda since he returned to the Oval Office this year. In many ways, he has been attempting (somewhat successfully) to get his political opponents to defend the indefensible, leaving one to speculate whether this action on flag desecration is not an effort to get his rivals to embrace the destruction of this most cherished American symbol.
Or perhaps he wants the Supreme Court to re-examine the current status? Whatever his motivation, in terms of political optics, this appears – at least to his base – to be a rare misstep.
* United States v. Eichman
