If saying the quiet part out loud were an Olympic sport, President Donald Trump’s remarks at the White House yesterday would win a gold medal. “We took the freedom of speech away,” said Trump on Wednesday.
The president was speaking to an audience of right-wing influencers at an anti-antifascism roundtable, flanked by Attorney General Pam Bondi and Homeland Security Secretary Kristi Noem. And he claimed that burning the American flag—an act the Supreme Court has repeatedly held is legally protected by the First Amendment—incites violence, and is thus free game for state suppression. “That’s been through the courts, and the courts said you have freedom of speech, but what has happened is when they burn a flag, it agitates and irritates crowds,” said Trump.
Clip via YouTube
Again, it’s not just the courts that say you have that freedom—it’s the Constitution. But that hasn’t always stopped the government from trying to “take it away,” and as Trump pointed out, courts have sometimes stepped in to enforce free speech rights when they are infringed. Texas v. Johnson, a Supreme Court decision that struck down a law criminalizing flag burning, was one such time.
Gregory Lee Johnson was a young communist activist who was part of the “Republican War Chest Tour,” a 1984 protest held in Dallas during the Republican National Convention. Outside Dallas City Hall, Johnson poured kerosene on an American flag and set it on fire, while protesters chanted, “America, the red, white, and blue, we spit on you.”
At that time, the Texas Penal Code made it a crime to “desecrate” a “venerated object,” and a person could be found guilty if they “physically mistreated” a state or national flag in a way they knew would “seriously offend” observers. Johnson was convicted and sentenced to one year in prison and fined $2,000. But the Texas Court of Criminal Appeals reversed the conviction, reasoning that Johnson’s flag-burning was intended to convey a particular message, and that the First Amendment could not abide punishment for his symbolic speech.
The Supreme Court agreed. Justice William Brennan wrote for the five-justice majority that “the expressive, overtly political nature” of Johnson’s conduct was “both intentional and overwhelmingly apparent.” The Court also rejected Texas’s argument that the conviction was justified by the state’s interest in “preventing breaches of the peace” and “preserving the flag as a symbol of nationhood and national unity.” A state may not just “assume that every expression of a provocative idea will incite a riot,” nor may it “foster its own view of the flag by prohibiting expressive conduct relating to it,” Brennan wrote.
Four months later, Congress responded to the Court’s ruling by enacting the Flag Protection Act of 1989, a bipartisan law criminalizing flag desecration nationwide. Lawmakers contended that the statute was sufficiently different from Texas’s (and therefore constitutional) because its interest was “protecting the physical integrity of the flag under all circumstances.” The Court didn’t buy it, and in United States v. Eichman, it struck down the federal law, too, as unconstitutional. Brennan, again writing for a five-justice majority, said it was “clear that the Government’s asserted interest is related to the suppression of free expression.”
Undeterred by the Constitution and the Supreme Court’s rulings, Trump is now trying to punish flag burning, too. On August 25, he published an executive order directing Bondi to “vigorously prosecute” people who “violate our laws in ways that involve desecrating the American Flag” and recommending that she “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Last week, he claimed on social media that anyone burning the flag “will be immediately arrested” and “subject to one year in prison.” Trump’s most recent declaration—that prosecuting flag-burnings amounts to “taking away” the freedom of speech—should appear on page one of the federal lawsuit filed by whoever challenges his order first.
Making up criminal offenses and sentences on the fly is not actually in Trump’s power to do. And the First Amendment does not have a “president’s whims” exception. But Trump does not think the law constrains him. He thinks it lets him control everyone else.
