Trump Brags ‘We Took the Freedom of Speech Away’ With Plan to Imprison Flag Burners — Supreme Court Rejected in 1989

President Donald Trump bragged on Wednesday that his administration “took the freedom of speech away” with a one year penalty for “inciting riots” with flag burning — never mind that the Supreme Court of the United States clearly ruled on this exact issue decades ago.

During remarks Trump delivered from the White House regarding “Antifa” and domestic terrorism, he brought up the flag burning issue.

To counter the “flag-burning mob,” said Trump, “we’ve made it a one year penalty for inciting riots.”

He continued:

We took the freedom of speech away because that’s been through the courts, and the courts said “you have freedom of speech” but what has happened is when you burn a flag, it agitates and irritates crowds — never seen anything like it, on both sides — and you end up with riots. So we’re going on that basis. We’re looking at it from, not from the freedom of speech, which I always felt strongly about, but never passed the courts.

The Supreme Court has taken a starkly different view from Trump’s framing of the issue, deciding on multiple occasions that flag burning is protected speech, and furthermore rejected arguments that flag burning alone could constitute incitement.

In Texas v. Johnson in 1989, the Court held in a 5-4 decision that burning the flag was symbolic speech intended to convey a political message and therefore protected under the First Amendment to the U.S. Constitution. The case arose from an incident at the 1984 Republican National Convention in Dallas where Gregory Lee Johnson burned a flag during a political protest.

The majority opinion by Justice William Brennan was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy and affirmed the opinion from the Texas Criminal Court of Appeals that had overruled Johnson’s conviction. Chief Justice William Rehnquist, and Justices Byron White, Sandra Day O’Connor, and John P. Stevens dissented.

The First Amendment’s protection “does not end at the spoken or written word,” wrote Brennan, who specifically rejected Texas’s argument that the act of flag burning was criminally prosecutable as a disturbance of the peace or as an act that “tends to incite” breaches of the peace. Pointing to the 1969 case of Brandenburg v. Ohio, Brennan wrote that the government can only punish speech where it would incite “imminent lawless action,” but did not find flag burning to constitute such “imminent” incitement.

The following year, in 1990, the nation’s highest court again took up a flag burning case, in U.S. v. Eichman, which declared a federal law banning flag burning that had been passed in the wake of the Johnson decision was unconstitutional. The Flag Protection Act of 1989 had attempted to get around the precedent by focusing on the action of burning or desecrating the flag instead of the speech, stating that “[w]hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.”

In another 5-4 decision with the same justices joining the majority and dissenting opinions as in Johnson, the Supreme Court in Eichman again found that flag burning was expressive conduct and therefore protected speech (citations omitted):

Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is “related ‘to the suppression of free expression,’” and concerned with the content of such expression. The Government’s interest in protecting the “physical integrity” of a privately owned flag rests upon a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way. For example, the secret destruction of a flag in one’s own basement would not threaten the flag’s recognized meaning. Rather, the Government’s desire to preserve the flag as a symbol for certain national ideals is implicated “only when a person’s treatment of the flag communicates [a] message” to others that is inconsistent with those ideals.

In August, when Trump signed an executive order purporting to crack down on flag burning with a one-year prison sentence, the proposal drew widespread condemnation from legal scholars and commentators across the political spectrum — including many conservatives.

Legendary First Amendment lawyer Floyd Abrams has litigated several landmark free speech cases and told Mediaite in August he was highly skeptical Trump’s order could survive a constitutional challenge. (Disclosure: Abrams is the father of Dan Abrams, the founder and owner of Mediaite.)

“The suppression of controversial speech is often popular but just as often violative of core principles of free expression,” Abrams said. “The Bill of Rights has not been amended since flag burning was held by the Supreme Court to be First Amendment protected and there is no reason to believe that President Trump’s latest effort at limiting speech will be sustained by the Supreme Court.”

Patrick Jaicomo, a civil rights litigator at the Institute for Justice, voiced a similar view as Abrams in denouncing Trump’s executive order, noting that “[y]ou can burn an American flag if you want in the United States of America, and the government cannot send you to jail at all, let alone for a year.”

“Don’t like it? Try to amend the Constitution,” he added.

New York Law School professor emerita Nadine Strossen also assessed Trump’s proposed executive order as blatantly unconstitutional, telling Mediaite that “even such a revered conservative as Supreme Court Justice Antonin Scalia agreed with his liberal colleagues on the ideologically neutral fundamental free speech principle at stake: genuine respect for the flag demands that we uphold the freedom for which it stands, including above all the freedom to criticize government policies, including through such dramatic symbolic expression as burning the flag.”