President Donald Trump and Attorney General Pam Bondi are a dream team when it comes to trying to violate Americans’ right to free speech.
Bondi claims to have figured out a way to prosecute people for burning the U.S. flag without violating Texas v. Johnsonthe 1989 Supreme Court decision that ruled flag burning is protected under the First Amendment.
“We will do that without running afoul of the First Amendment,” she said.
Oh, okay, as long as you say so.
Generally, criminalizing speech that the Supreme Court has said is protected by the First Amendment … runs afoul of the First Amendment. But since both Trump and Bondi think they are the smartest people in the room, let’s entertain the logic in his dumb executive orderissued on Monday, that would put people in jail for desecrating the American flag.
Trump and Bondi are not going to prosecute flag burning as such. Instead, they will prosecute people for desecrating the flag if they decide it is likely to incite some additional imminent lawless action, because the Supreme Court has never held that that is protected. As if Bondi remembered for one moment she is the most powerful lawyer in the country, she slapped one citation in here to back this up—to the Supreme Court case that ruled it was protected. Good luck figuring out what she’s trying to say here.
They will also prosecute people for flag burning if it discriminates against American citizens or violates their civil rights. It is exhausting to keep explaining to the attorney general of the United States that protected First Amendment expression cannot, by its nature, violate someone’s civil rights. But hey, what about those immigrants who burn it, huh??
“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,” Trump’s order claimed.
See above and go read the flag-burning case you read in law school, Pam. In throwing out Texas’s law criminalizing flag burning, the Supreme Court basically told people to stop being such pussies:
We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude towards its flag.
All of this is red meat for Trump’s base, but it’s also just a way to attack immigrants. Per his order, “The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law … 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.”
What exactly is the definition of “American Flag-desecration activity” for which you could be rendered to prison? Who can say! But to be perfectly frank, we do know what it looks like to disrespect the flag in a profound way that wounds our country as a whole: The Jan. 6, 2021, insurrectionists, who were whipped into a froth at Trump’s behest, used the American flag to attack law enforcement. Got your desecration right here, pal.
No matter how Trump phrases it, he cannot create a criminal cause of action out of thin air. If conservatives want this so bad, get Congress to pass it and get your conservative pals on the Supreme Court to rule it constitutional.
Though the executive order tried to be vaguely crafted enough to imply that they wouldn’t prosecute unless the desecration violated some other underlying law, Trump couldn’t even keep it together for the duration of the signing ceremony.
“You burn a flag, you get one year in jail,” he said. “You don’t get 10 years. You don’t get one month. You get one year in jail. And it goes on your record, and you will see flag burning stopping immediately.”
If Bondi can illegally arrest and try to prosecute someone by pretending this executive order is a law, the administration might get lucky. None of the Supreme Court justices who decided the flag case remain on the bench. Who knows—with this crop of conservatives who believe the only speech that should be protected is anything that offends their tiny conservative Christian eyeballs, Trump might have a shot.
