Flag-burning is free speech, whatever Trump says

Donald Trump appears set to quench his long-standing and disturbing desire to prosecute people who burn the American flag. In an executive order signed on Monday, the US president reaffirmed his commitment to criminalise this supposed act of ‘contempt, hostility and violence against our nation’. ‘If you burn a flag, you get one year in jail, no early exits, no nothing’, he said while signing the order.

Trump has been talking about banning the desecration of the American flag for several years now, calling it a ‘no-brainer’ in 2019. His crusade against flag-burning stands in stark contrast to his often avowed support for free speech. Before last year’s presidential election, he and the Republicans rightly railed against the censorship and lawfare practised by Democrats, whereby they would turn to the law or social-media companies to lock up or deplatform their opponents. One of his first executive orders on returning to office in January was to ‘stop all government censorship and bring back free speech to America’. ‘Never again will the immense power of the state be weaponised to persecute political opponents’, he decreed.

But persecuting political opponents is precisely what Trump’s executive order seeks to do. It is a clear attempt at censorship. After all, burning a flag is a provocative, but non-violent means of communicating one’s opposition to the policies or leadership of a nation. It may be juvenile, but it is a form of political expression.

Trump’s executive order describes the American flag as ‘sacred and cherished’, a symbol that ‘patriots have fought, bled and died’ for. It asserts that ‘desecrating it is uniquely offensive and provocative… the clearest possible expression of opposition to the political union that preserves our rights, liberty and security’.

But there are other things the flag symbolises, too. It represents a constitution that was born out of the Enlightenment, with freedom of speech part of its DNA. Indeed, America’s Enlightened free-speech tradition will almost certainly thwart Trump’s executive order. The US Supreme Court takes a dim view of attempts to curtail free speech and, in 1989, it specifically upheld the right to burn the American flag on free-speech grounds.

Trump’s executive order does at least acknowledge this. It directs attorney general Pam Bondi to ‘vigorously prosecute’ offences that only involve flag-burning. That is, it avoids outright prohibiting the burning of the American flag, preferring to focus on flag-burning when it coincides with violations of existing laws, such as crimes against property or illegal discrimination. In short, the order acknowledges that it cannot legally prosecute ‘burning of the American flag’, despite what its title says.

Hopefully, this means the executive order may not amount to much more than signalling. But Trump should still be called out for his vacillations on free speech. After all, his attempted prohibition on flag-burning fits a troubling pattern of censorship, including his attempts to micromanage Harvard University’s teaching, through withdrawing funding and government contracts.

Trump and too many of his conservative supporters are guilty of hypocrisy here. They blast wokeism because, among other things, it stifles views identitarians didn’t agree with. Now that the boot is on the other foot, the Trumpist right is also getting a taste for censorship.

The original 1989 Supreme Court decision on flag-burning, Texas v Johnson, says precisely what needs to be said. As Justice William Brennan put it: ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ If Trump wants to present himself as a true defender of free speech, then these are words he would do well to remember.

Hugo Timms is an editorial assistant at spiked.