SIDEBAR: The Flag, the Fire, and the Freedom It Represents
On the flag-burning EO
We’ve been studying Texas v. Johnson in my constitutional law class, a 1989 Supreme Court decision that struck down laws punishing people for burning the American flag. For most students, the case feels like a relic of another era, when flag-burning protests over Vietnam or Reagan-era policies made national news. But on August 25, President Trump issued a new executive order directing federal agencies to “prosecute the burning of the American flag to the fullest extent permissible.” Now, a case we would have read as history has become a live constitutional controversy.
The order opens with lofty, almost devotional language about the flag as “the most sacred and cherished symbol of the United States.” It frames flag burning as “a statement of contempt, hostility, and violence against our Nation,” and calls on the Justice Department to use every available legal tool—from criminal statutes on arson and disorderly conduct to immigration penalties for foreign nationals—to target acts of desecration. It promises to “restore respect and sanctity” to the flag, as if reverence could be legislated back into public life.
But the order also betrays an awareness of constitutional limits. It concedes that Johnson protects flag burning as symbolic speech, yet tries to carve out exceptions. It argues that the Supreme Court never held that flag desecration “likely to incite imminent lawless action” or that counts as “fighting words” is protected. On the surface, that sounds like a clever legal maneuver, a way to punish flag burning without directly contradicting Johnson. In reality, both exceptions are so narrow, and so rarely applied, that they offer almost no room for new prosecutions.
“Imminent lawless action” is the modern test for incitement, a category the Court defined during the Vietnam era to protect political speech from overbroad censorship. It applies only when words are intended and likely to spark immediate violence—like a speaker urging a crowd to attack right now. It’s hard to imagine a flag-burning protest meeting that threshold.
The “fighting words” doctrine is even more fragile. It comes from a 1942 case, Chaplinsky v. New Hampshire, which upheld the arrest of a man who hurled personal insults at a police officer in the street. The Court described “fighting words” as speech so directly abusive that it provokes an immediate punch. But the Court hasn’t used that doctrine to uphold a conviction in over eighty years. Since then, it has protected Vietnam draft protests, racist rallies, and even Westboro Baptist Church’s hateful funeral demonstrations, all on the ground that offensive ideas, however painful, are still ideas.
Why has “fighting words” fallen out of use? Because over time, the Court recognized that protecting only polite or agreeable speech empties the First Amendment of its purpose. The test of free expression isn’t how we treat speech we admire, but how we handle speech that enrages us. A democracy cannot function if every insult or symbol of dissent becomes a trigger for prosecution. Modern courts assume that adults in a free society have a duty to tolerate offensive words, rather than silence them through law enforcement.
That history matters now. When an executive order declares that it will prosecute flag burning to “restore respect and sanctity” to the flag, it’s invoking the same logic that Johnson explicitly rejected: that the government may punish expression because it feels offensive, divisive, or unpatriotic. Wrapping that motive in the language of “law and order” or “fighting words” doesn’t change what it is: a viewpoint-based effort to police dissent.
The order doesn’t create a new crime, but it encourages prosecutors to stretch old ones and to see how far they can go in blurring the line between speech and sacrilege. That might win political points, but it risks something far greater: eroding the very freedom the flag is supposed to represent.
This EO just seems to be in line with Trump's testing of the bounds of power the executive branch can wield. It would be nice if the Court could hear a case about this in the next couple of years and hopefully reaffirm one of the most clear values every Court has held for the past sixty years.
If there is any precedent the Court will keep that has been challenged since the conservative ideology of the bench has been cemented, it is probably this.
This is a somewhat tangential point, but I think it is important in the context of our class conversations. My thoughts were sparked by this line in the post: "[A]dults in a free society have a duty to tolerate offensive words, rather than silence them through law enforcement."
I understand the point and appreciate that we are not silenced with law enforcement through our expression. However, one thing people often overlook is that the First Amendment is about government action, not private parties. On social media, I see a lot of hateful, offensive, and vile commentary. And when that person (rightfully) gets called out, they cry First Amendment. But the First Amendment is about freedom of speech, not freedom from consequences. If you say something disagreeable, people have a right to disagree with you and choose not to associate with you rather than tolerating it. I don't think it is wrong for someone to go to an employer or school if someone says something completely outside moral boundaries. While the government should never be engaged in this kind of silence, I see nothing wrong with the free market of ideas policing it.