Trump signs executive order on flag burning: What it means for free speech

Donald Trump signed an executive order in late August that seems to make it illegal to burn the American Flag.

Trump signed the executive order on Aug. 25 in the Oval Office.

“If you burn a flag, you get one year in jail [with] no early exits,” Trumps said. “You don’t get 10 years. You don’t get one month. You get one year in jail.”

 Last week, a man from North Carolina lit an American flag on fire outside the White House gates. Police detained and arrested him.

The man believes Trump’s executive order infringes on his constitutional right to freedom of speech.

The First Amendment to the U.S. Constitution says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The executive order states, “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.”

While Trump is the first president to use an executive order for a ban on flag burning, he’s not the first politician to pursue it.

Previous attempts to ban US flag burning

 In 1989, Congress passed the Flag Protection Act. The bill made flag burning a federal crime, and President George H.W. Bush signed it into law.

“I believe that the American Flag is a unique and special symbol of our nation, and it should be protected from desecration, and our administration has proposed a constitutional amendment to protect the flag,” Bush said at the time.

But the Bush-era law did not change the Constitution, and the U.S. Supreme Court struck it down.

In 2006, Hilary Clinton, then a U.S. Senator for the state of New York, she co-sponsored a bill that used similar language and reasoning as Trump.

 “I hope Mr. President that we can pass a law that criminalizes flag burning and desecration,” Clinton said at the time. “I agree that this burning, this desecration that happened to our flag is something that people have the right to ask this body to try to prohibit and prevent.”

A vote to amend the Constitution passed the U.S. House, but failed in the Senate by one vote.

Why does the US Supreme Court allow people to burn the flag?

At the time, many legal experts still didn’t think the 2006 proposal was enough – that the U.S. Supreme Court would strike that down too – but, why?

Why does the Supreme Court keep allowing people to burn the flag?

Years ago, CNN asked these questions to Antonin Scalia, one of the conservative justices who famously ruled in favor of protecting flag burning.

 “If I were king, I would not allow people to go about burning the American flag,” Scalia said at the time. “However, we have a First Amendment, which says the right of free speech shall not be abridged.

“And, it is addressed, in particular, to speech critical of the government. I mean, that was the kind of speech that tyrants would seek to suppress. Burning a flag is a symbol that expresses an idea [like], ‘I hate the government. The government is unjust.’ Whatever.”

Defending speech we hate

The First Amendment protects all speech, even speech you don’t like.

The American Civil Liberties Union [ACLU] has a list called “Defending Speech We Hate” because the organization champions free speech, even when it conflicts with its values.

The ACLU has a long history of fighting for LGBTQ rights, but has also fought for the free speech of a teacher who was fired for posting homophobic slurs on Facebook. In 1977, the ACLU nearly went bankrupt supporting the right of Nazis to march through Skokie, Illinois, where the population includes 6,000 Holocaust survivors.

There are limits to free speech, which the courts have outlined over the years. They include:

Obscenity: For example, you can’t start playing pornography on the street corner.

Commercial speech: Ads can’t lie to promote a product.

Speech in context: For example, the government can require that there be no loud music after a certain time.

Flag burning: Free speech or incitement to violence

Trump's order and Clinton’s bill back in 1990s both turn to another exemption: Incitement.

 Trump’s order bans flag burning if it incites violence or violates other laws.

The situation with the North Carolina man outside the White House is kind of an open-and-shut case: He wasn't charged with burning the flag, he was charged with starting a fire in a public place. He could have been burning anything. 

However, it can be tough to legally prove inciting violence, even using extreme examples.

The modern legal framework for evaluating incendiary speech comes from the landmark Brandenburg v. Ohio case in 1969. In that ruling, the Supreme Court confronted the limits of free speech when tested by extremist rhetoric.

In 1969, Ku Klux Klan leader Clarence Brandenburg held a rally in Ohio. They wore hoods, burned a cross, carried weapons and made horrendous remarks about race and religion. At the rally, Brandenburg delivered racist remarks calling for "revengeance" against Black people and Jews. He was prosecuted under Ohio’s Criminal Syndicalism Act, a law broadly outlawing advocacy of violence. Brandenburg was convicted and sentenced to prison.

However, the U.S. Supreme Court unanimously overturned Brandenburg's conviction, establishing a crucial principle: A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action.

The Supreme Court looked at Clarence Brandenburg’s rally, the hoods, the burning cross, the racist rants, even the presence of weapons, and still decided his speech wasn’t an imminent threat.

Specifically, the high court decided that free speech should be protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

This is the ruling that allows hate groups to legally march, rally and spew hateful speech.

It’s why the Westboro Baptist Church can hold signs that say “God sent the shooter” outside the funerals for children killed in a mass shooting.

What the US flag represents

The American flag represents a lot. It’s our home, where many of us we were raised. It’s the country that showed the world that this experiment of a free society could not only work, but thrive. It represents all the people who fought and died to prove it.

It represents independence, emancipation, women’s suffrage, civil rights, “a refuge for the tired, the poor, and the huddled masses yearning to breathe free” – and the knowledge that while none of those pursuits are complete, we’ve never stopped trying.

It’s the Moon landing, the Super Bowl, the Rocky Mountains, small town parades, homecoming queen and ice cream after Little League baseball games. It’s soldiers on the beaches of Normandy during World War II and rebuilding at Ground Zero after the Sept. 11 terrorist attacks.

It’s a dream and a reality at the same time. It’s potential.

When you see people desecrate the flag, it’s ironic, because they’re burning something that stands for them.

It doesn’t stand for just one side of an issue. It stands for your right to be on any side.