WASHINGTON, D.C. — President Donald Trump signed an executive order on Monday that would make it illegal to burn the American flag. This move puts him in direct conflict with more than 30 years of legal precedent. The order, which Trump signed in the Oval Office, orders the Justice Department to look into and punish anybody who burn flags. Trump said that the punishment would be a year in jail with no chance of early release.
The president’s move goes against the 1989 Supreme Court case Texas v. Johnson, which said that burning a flag is a kind of symbolic speech protected by the First Amendment. In that decision, Justice Antonin Scalia, a conservative judicial hero who Trump has lauded many times, agreed with the majority that the conduct was protected by the Constitution.
The new executive order recognizes the Supreme Court’s decision, but it tries to make exceptions by saying that flag burning can still be against the law if it is “likely to incite imminent lawless action” or “fighting words”—terms that the courts have very specific definitions for.
Trump justified his choice to sign the bill by saying that burning flags “incites riots at levels we’ve never seen before,” saying that it makes people “go crazy” and makes them angry. He didn’t give any particular examples to back up these allegations. The order clearly says that disrespecting the flag is “uniquely offensive and provocative” and a “statement of contempt, hostility, and violence against our Nation.”
The directive not only threatens jail time, but it also targets people from other countries. It says that non-citizens who burn the flag could lose their visas, residency permits, or other immigration privileges, and they could potentially be deported.
Trump said frankly that he didn’t like the Supreme Court’s 1989 judgment. He called it a “very sad court.” He stated that even if the court dubbed the conduct “freedom of speech,” there is a “much more important” cause to stop it: “It’s called death,” he remarked. “Because the area goes crazy when you burn a flag.”
Many lawyers and civil rights activists have spoken out against the executive order, saying it is against the law and will not stand up in court. They say that the president can’t just ignore a Supreme Court judgment and that the legal exceptions for “incitement” and “fighting words” don’t apply to political protests like burning flags.