Seeking to contravene a Supreme Court decision, President Donald Trump said his executive order on burning the American flag makes the act illegal, punishable by up to a year in jail. But the order’s actual text explicitly concedes to First Amendment limitations.
“They called it freedom of speech,” Trump said in the Oval Office. “But there’s another reason which is perhaps much more important. It’s called death. Because what happens, when you burn a flag, is the area goes crazy. If you have hundreds of people, they go crazy. You can do other things. You can burn this piece of paper. When you burn the American flag, it incites riots at levels that we’ve never seen before.”
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The flag-burning order was one of three intended to crack down on what Trump describes as rampant violent crime, even though federal statistics show a declining crime rate in much of the country. He also authorized the Justice Department to withhold federal money from localities with cashless bail policies and ended the practice in the District of Columbia.
He said his crime-fighting efforts are turning around the United States.
“We had a dead country, we were not going to survive,” Trump told reporters. “Now we have the hottest country in the world.”
Organizations that promote free speech quickly criticized the flag-burning order.
“President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t,” Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, said in a statement.
Trump’s words versus executive order
The Supreme Court has long upheld burning the U.S. flag as an act of symbolic speech that, while offensive to some, is protected under the First Amendment.
Trump’s order, however, gives Attorney General Pam Bondi the discretion to refer flag-burning cases to state or municipal authorities for prosecution. The order only allows for criminal charges if someone burns the flag while also committing another crime, such as hate crimes, violence or property damage, among others. It contradicts Trump’s own words that it bans flag-burning.
“If you burn a flag, you get one year in jail — no early exits, no nothing,” he said.
The order also directed the Departments of State, Homeland Security and Justice to either deny, prohibit, revoke or terminate immigration proceedings for citizenship or visas for any immigrant who has burned a flag. The order does not state whether that would apply when a person is convicted or merely charged.
Corn-Revere said in a Monday statement that the First Amendment cannot be revised through an executive order. He added that the beauty of the First Amendment is that people can express their opinions freely, even if people don’t like what’s said.
“While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it ‘uniquely offensive and provocative,’” Corn-Revere said.
Editor’s Note: An earlier version of this story incorrectly attributed President Donald Trump’s comments to his executive order. The story has been updated to reflect the accurate attribution on provisions of the order and Trump’s comments. Straight Arrow News regrets the error.
