Trump’s Got Some Unconstitutional Ideas About Flag Burning

Trump apparently disagrees and hopes to enforce Section 700(b) against future flag-burners. “And what the penalty will be is that if you burn a flag, you get one year in jail,” Trump interjected. “No early exits, no nothing. You get one year in jail. If you burn a flag, you get—and what it does is—incite to riot. I hope they used that language, by the way. Incite to riot. And you burn a flag, you get one year in jail. You don’t get ten years, you don’t get one month, and it goes on your record.”

The problem is that the Supreme Court already said no. Almost immediately after the law’s passage, Johnson and two fellow protesters burned a flag in a public protest and were prosecuted accordingly. The Supreme Court, along the exact same 5-4 lines as last time, struck down the Flag Protection Act in the 1990 case United States v. Eichman. The justices were not persuaded by the Justice Department’s claims that it was merely protecting the “physical integrity” of the flag instead of punishing free expression. Though lawmakers occasionally floated a constitutional amendment in the years that followed, it never gained traction.

Trump’s executive order tries to get around Johnson and Eichman by leaning on the breaching-the-peace interest. “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,” the order’s preface claimed, citing Johnson.