Why Trump REALLY Cares About Flag Burning

Written By Leeja Miller

Sources:

Transcript:

You’re tuned into Why, America? I’m Leeja Miller. On Monday, Trump signed a new executive order titled Prosecuting Burning of the American Flag. …why? Why does he care? Why does this matter, what nefarious plot is this part of? That’s what we’re discussing today.

The reason I ask “why” so incredulously, given that it’s pretty easy to be incredulous about so many things right now, is because this is pretty settled law, there isn’t some new wave of flag burnings happening that is going unaddressed, this seems kind of out of left field and random given the regime’s general focus on different, grander plans and schemes. And in part, it is true, this is a distraction from things like the fact that he’s threatening to expand his military takeover to places like Chicago and New York in a way that makes my stomach churn, though I’ve already made episodes sort of breaking down all the reasons why he can’t do that and probably will anyway. But I think there’s an insidious underbelly to this seemingly random distraction that is important to unpack here. First, let me pay the bills.

AD

Thank you to my partner on today’s video, PDS Debt! Credit card debt SUCKS–I’ve struggled with it, I know how stressful and overwhelming it can feel to watch those debts pile up. And it’s so hard to live your life under the constant strain of worrying about credit card debt, on top of, you know, literally EVERYTHING ELSE going on right now. And of course it is the credit companies that win when you have to keep paying them huge amounts of interest every month. It can feel SO good to finally take back control of your life by tackling those big scary debts, especially if you can get a little help along the way. If you’re struggling with credit cards, personal loans, collections, or medical bills, you need to check out PDS Debt. PDS debt provides a service to match you with debt solutions tailored to your financial situation and they have a team of people ready to help you with your debt journey. They understand your specific scenario and will help provide alternative solutions to becoming debt free PDS debt is offering a free debt analysis. It only takes thirty seconds. Head over to PDSdebt.com/miller to get your free debt assessment today. You’ll receive a full breakdown on how to save on interest each month and the quickest way to take care of your debt. There is no minimum credit score required. Whether your credit is bad or fair, they’re here to help you save more, pay off your debt faster, and start putting money back where it belongs—in your savings account. PDS Debt is A+ rated by the Better Business Bureau, boasts hundreds of 5-star reviews on Google, and holds a 5-star rating on Trustpilot. And getting started is easy! Go to P D S Debt dot com slash miller to complete your free debt assessment in just 30 seconds to see what options are available to you. Get your free assessment and find the best option for you right now at P D S Debt dot com slash miller. Thanks PDS Debt!

According to Monday’s executive order, quote “The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”

It goes on to say quote “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.”

It says “To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.”

And it goes on to say that the AG and others quote “shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.”

Two issues with this: one is that it is already a crime to violate laws while burning the flag. Elie Mystal sums it up well in his great piece in the Nation today. Quote “It is already the case that you can be prosecuted for doing an illegal thing, unrelated to “expression,” even if you are also doing a legal thing under the First Amendment at the same time. I could be prosecuted for murder while wearing a corsage. I might argue in court that “I have a First Amendment right to wear flowers on any part of my body, your honor”—and I would be right. But the judge would likely say, “Sir, you are here for the gun in your hand, not the flowers on your wrist, motion to dismiss denied.”” So if you light a flag on fire and burn down the whole building, you can be tried for arson. That is already the case, no executive order was needed to clarify that.

It is also the case that you cannot be prosecuted for the act of burning the flag. And the executive order doesn’t deny that or try to rewrite the constitution on that, which is honestly surprising given how they’ve attempted to do that with a lot of other parts of the constitution so far. It acknowledges that there is an “extent permitted by the constitution” meaning constitutional limitations on these prosecutions. It also invites Pam Bondi to “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Meaning bring cases up to the Supreme Court to give them another opportunity to overrule themselves in Trump’s honor.

The case in question is Texas v. Johnson. At the 1984 Republican National Convention in Dallas, Texas, as Ronald Reagan was being chosen as the official nominee of the Republican party for his reelection, a man named Gregory Lee Johnson set a flag on fire outside the convention hall. It was the culmination of a demonstration that included marching through the streets of Dallas, staging “die ins” to protest nuclear war, and small acts of vandalism that Johnson did not participate in. The burning of the flag was meant to protest the presidency of Ronald Reagan and the international wars and aggression instigated by the United States. According to the supreme court opinion, quote “No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.” The court goes on to say quote “Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex.Penal Code Ann. § 42.09(a)(3) (1989). After a trial, he was convicted, sentenced to one year in prison, and fined $2,000.”

He appealed his conviction on the grounds that it violated his First Amendment right to free expression, and he won his appeal. The appellate court stated “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent." It went on to find, quote “Serious offense' occurred, but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate 'serious offense' with incitement to breach the peace." Texas already had a statute that criminalized breaching the peace. This additional statute was specifically aimed at the desecration of the flag, separate from any breach of any peace. Okay so that’s what happened in the lower court before it got to the Supreme Court and stick with me here cuz I think this is an important and interesting discussion given what’s happening in this country. ANd also this Supreme Court is likely going to overturn this case if another flag burning case makes its way up to them, which Trump is begging for, so this is important precedent to know.

The Supreme Court analyzed whether this conviction was an unconstitutional infringement of Johnson’s protected free speech rights. First, it determined that the burning of a flag is, in fact, expression, it is a form of “speech” even if it is not spoken. The act must display “an intent to convey a particularized message” AND there must be a high likelihood that “the message would be understood by those who viewed it.”

Given the context of the protest, the culmination of chants, marching, “die ins”, and clearly articulated political opinions, the burning of the flag, in that context, clearly was meant to convey a message. And the use of the flag itself was, as the court said, “pregnant” will expressive content. “Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design." Because of this, quote “the expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.” Okay, so he intended to communicate something, in a particular context, in a way that was easily understandable to all who witnessed it. This is expression, therefore the First Amendment is implicated. However, that doesn’t mean it is automatically protected under the First Amendment. There are plenty of things that are NOT protected under the First Amendment–defamatory statements, obscenity, threats, incitement of violence and riots, none of that is protected by the first amendment even if it counts as “speech.”

So the central question to determine whether a law violates the First Amendment is whether the governmental interest furthered by said law is unrelated to the suppression of free speech. So they didn’t pass the law to suppress free speech, it serves a purpose disconnected from the expression. Texas argued that its prohibition on flag burning was meant to prevent breaching of the peace. Again, they already have a separate statute for that, Texas admitted that no breach of the peace occurred or was even threatened due to Johnson’s flag burning. The court reasons quote “The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. … No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs."

The court also rejected Texas’ argument that the law was meant to preserve the flag as a symbol of nationhood and national unity. The decision says quote “Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.

Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause "serious offense." If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law: federal law designates burning as the preferred means of disposing of a flag "when it is in such condition that it is no longer a fitting emblem for display," 36 U.S.C. § 176(k), and Texas has no quarrel with this means of disposal. Brief for Petitioner 45. The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others.”

And just to really drive home how important it is that we be allowed to express things that are controversial, the court says, and I’m going to jump around the opinion a bit but just hold current events in your mind as I read the words of the Supreme Court of the United States, quote “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 there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." … We would be permitting a State to "prescribe what shall be orthodox" by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity. … To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.

… its statute's implicit assumption that physical mistreatment of the flag will lead to "serious offense," tend to confirm that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag had been burned.

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. … We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Justice Kennedy concurred with the opinion, writing separately to note how much he hates flag burning, saying “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. … Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.” Which is wild to read in the context of today’s court.

The decision was 5 to 4, with conservative Justice Antonin Scalia joining the majority. The dissent, written by Justice Rehnquist, however, is also important, especially given the fact that yesterday JD Vance tweeted quote “Texas v. Johnson was wrong and William Rehnquist was right.” So let me just take some time to explain why Rehnquist very much was not right. He was wrong, and JD is wrong.

Much of the dissent is dedicated to showing how revered the US flag is. He uses pages and pages to quote the star spangled banner and other flag-related poetry, concluding quote “But the Court today will have none of this. The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of "designated symbols," ante at 491 U. S. 417, that the First Amendment prohibits the government from "establishing." But the government has not "established" this feeling; 200 years of history have done that. The government is simply recognizing as a fact the profound regard for the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag.” Which, like, first of all, he’s taking a lot of liberties by saying that “virtually all of us” feel awe and respect for the US flag. I’m not sure who’s included in “us” in that statement, but that’s a leap unsupported by anything in the argument he presents. And the government has ABSOLUTELY worked to “establish” those feelings. I did not, of my own free will as a 6 year old, look upon the US flag hanging in my first grade class and think DAMN I wish there was some sort of pledge of allegiance I could recite while looking at that thing I am feeling MOVED, of my own free will, to PLEDGE my ALLEGIANCE. 200 years of a very curated version of history attempts to teach us awe and respect for the flag. And STILL there are MANY people, in 1989 and even moreso now, who do not feel the feelings of patriotism and reverence that we are “supposed” to feel when we look at that thing. I feel nothing besides some vague shame. I wouldn’t be caught dead hanging that thing from my house because of everything it represents and the type of people I would be associated with who tend to revere the flag. Hanging a flag outside your house sends a very clear message and I would hate to have my neighbors think I approve of that message. That’s embarrassing.

So when Rehquist argues that “virtually all of us” feel deep awe and respect for the flag and, therefore, it deserves a special category of its own so no one can burn it, wasn’t true when he wrote it and it’s arguably even less true now.

He goes on to argue “Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people -- whether it be murder, embezzlement, pollution, or flagburning.”

Right one of these things is not like the other. First of all I’m not going to even justify comparing flag burning to murder with any sort of analysis. But people, generally speaking, don’t embezzle money as a form of expression, to express a political opinion. BP didn’t spill millions of gallons of oil into the ocean in an act of political expression. Saying that it is a democratic society’s duty to legislate against murder and flagburning equally is stupid.

Justice Stevens wrote a separate dissenting opinion, in which he said “sanctioning the public desecration of the flag will tarnish its value -- both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression be employed.” Oh so free expression is trivial now, interesting. And this is an argument I saw pop up a lot in my research, the argument that it tarnishes the value of the flag to let people burn and that there are other, alternative and equally effective ways of expressing the same idea without having to burn the flag. In this, I think the majority opinion does a good job of arguing that the very fact that a burnt flag is controversial, that makes people feel deeply offended, speaks to the reverence a lot of people do feel for it. If it wasn’t, no one would care or feel anything when a flag is burnt. As a testament to that, even I feel things when I see an image of an American flag on fire. I don’t give two shits about the flag, but I understand the deep symbolism, what it means to other people, what it’s meant throughout the history of this country, and I am reminded of that when I see a flag on fire just as much as I am able to take in the protest and the dissent which the burning flag symbolizes. Which also supports the argument that no, there is no alternative means of communication that would do the same thing without burning the flag. BECAUSE of the flag’s centrality to the symbolism of this country, because of the power of its symbolism and the power of the symbolism of setting it on fire, there is no speech, no protest sign, no other act, that a person can do that will convey that message as clearly and effectively as setting the flag on fire. It is a very powerful, clear, stark, effective form of political dissent. And that is exactly why Trump is intent on getting rid of it.

Flag burning had precedent in this country long before Gregory Lee Johnson lit the flag on fire in front of the 1984 Republican National Convention. It was a powerful symbol at protests against the US involvement in the Vietnam War in the 1960s. And at no time was the flag MORE deeply symbolic than during the Civil War. At that time, the First Amendment had not been interpreted to protect flag burning, and martial law was pervasive throughout the country. People were prosecuted and killed for removing, tearing up, spitting on, and burning the flag. Many MANY more were arrested, court martialled, and imprisoned for the duration of the war, ordered to do hard labor as punishment for speaking ill of the flag or mistreating it in any way.

I found an interesting article from The Federal Lawyer magazine, it’s linked in the sources, that listed a number of stories of people being prosecuted for any number of quote unquote “crimes” against the flag. Quote “Thomas Richardson, a recruit in the 6th California Volunteers, was playing a game of cards on Christmas Eve 1863 when one of his comrades waved the flag over the table. Annoyed, Richardson blurted out that “that flag is not fit to wipe a man’s arse with, I have no respect for the American flag.” At his trial, Richardson claimed that he was drunk, but other witnesses testified that he had been sober. The court found him guilty and sentenced him to be dishonorably discharged from the Union army and confined at hard labor on Alcatraz Island for one year.” In another instance, quote “In December 1864, John Watkins of Baltimore County, Md., was tried before a military commission for stealing and destroying an American flag that hung on the home of a local politician … For these indiscretions, Watkins was found guilty of “conduct tending to incite insurrection and encourage rebellion” and was sentenced to hard labor for three years.”

I don’t know about you but I personally am not interested in going back to a time when saying I’d wipe my ass with the US flag could land me three years of hard labor at Alcatraz. But that does appear to be the future Trump wants, especially if you’re brown or an immigrant. The executive order he signed clearly states that immigrants would be in danger of losing their status if found to have burned a US flag. Just to clarify the first amendment DOES apply to immigrants as much as to citizens, just so we’re clear. People really think fundamental constitutional protections only apply to citizens but if they were to just pick up a copy of the pocket constitution they would find that is not the case. You don’t even need to know supreme court precedent, the plain language is very clear that it applies to everyone.

I’ll turn back to the Elie Mystal piece in the Nation for a good summation, here. “Like all things with Trump, I think this is a way to give him another excuse for deporting people in his ongoing attempt to ethnically cleanse the country. And I think the Republican justices on the Supreme Court will, as per usual, give Trump what he wants.”

Quote “The current Supreme Court has shown no respect for its own precedents, even the ones it laid down only a few years ago. This gang of Republicans masquerading as judges will have no problem overturning a 36-year-old case that their side only barely lost anyway. If the Republican supermajority wants to make flag burning unconstitutional, they certainly can.”

Mystal warns, I think presciently, that the veteran who was arrested on Monday for burning the flag across from the white house in protest of this anti flag burning order could very well be the test case Pam Bondi will pounce on to get this before the Supreme Court, though he was technically arrested for lighting a fire in a public park, which is a content-neutral prohibition unrelated to the burning of the flag itself. And it is well within the realm of possibility that this court could quote “rule that the white combat veteran who burned the flag to protest an executive order against flag burning was exercising his free speech rights but hypocritically say that the Muslim who burns a flag in New York City to protest US involvement in the Middle East is “terrorizing” Americans and trying to cause a riot.”

That is, I think, where this is all headed. This is just another layer in the plan to create the pretext necessary to send in the troops. The moment a flag is set on fire at a protest anywhere in the country, they can swoop in, point to that executive order and say no no this isn’t protected speech because it was clearly meant to incite violence. Never mind if it was. Never mind if any violence was actually incited. Never mind that in my research for this episode, despite reading about a lot of hand wringing about incitement of violence I never read a single account of some violent mob forming in response to a flag being burned. I understand theoretically why someone might worry that violence could be incited by a burning flag but I’d like anyone to point me in the direction of any evidence of that actually occurring. None of that will matter though. It won’t if the Supreme Court gets a chance to overrule itself. It won’t if a flag is burned on a Chicago street and nothing happens but Trump sends in the troops claiming they are inciting violence by burning flags on the streets of Chicago.

Once again, I’ll turn to Elie Mystal to sum it up: quote “My best legal thought is this: if you are foreign born, don’t burn the flag. You’ll be in a gulag owned by crypto-bros long before John Roberts gets around to ruling that the First Amendment is just a collective hallucination and Trump has been anointed to relieve us of our misconceptions.

If you’re a white, cishetero, American born male: also don’t burn the flag. Try shooting it instead. Then see if the Supreme Court will uphold your Second Amendment rights.”

Again that article, along with all my sources, is linked in the description.

If you want the joy of supporting independent media, all these episodes are ad free over on Patreon, patreon dot com slash Leeja Miller.

Thank you to my multi-platinum patrons Marc, Sarah Shelby, Art, David, R_H, L’etranger (Lukus), Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you!

And if you liked this episode, you’ll like the one from Monday about whether Americans can flee America and seek asylum elsewhere.

Leeja Miller
Next

Are Americans Eligible for Refugee Status?