The executive order is clearly a violation of the First Amendment and the ruling in Johnson. I don't really understand the purpose of this executive order, as the article implies, reverence cannot be legislated back into public life. I do not think burning the flag on its own counts as imminent lawless action or as fighting words. The administration's actions concerning the First Amendment are very upsetting as we saw many student activists recently targeted. These are the exact situations the First Amendment is meant to protect against.
A lot of the thread is circling the conduct versus speech line, and rereading Johnson I don't think the Court really decided it there. It just took the conduct as expressive enough to get into the First Amendment and went straight to Texas's two interests. The breach of the peace one dropped out because no disturbance actually occurred or threatened to occur. The nationhood interest is what actually did the work, and the Court said those concerns "blossom only when a person's treatment of the flag communicates some message," which put the case "outside of O'Brien's test altogether." That feels like the part that matters for the order. The order's whole move is to point prosecutors at other laws, but under Johnson it isn't really about which law gets used, it's whether the interest behind the enforcement depends on the message. If it does, O'Brien drops out the same way it did for Texas.
I think it’s shocking that, despite the existing opinion in Texas v. Johnson, the executive order still tries to frame the flag as a symbol that deserves special protection from “unpatriotic” behavior. It seems directly contradictory to the idea that the First Amendment protects speech regardless of whether the government agrees with the message. Everything we have been reading makes it clear that the First Amendment is especially important when it protects speech that people disagree with or find upsetting. I think this also raises an interesting question about how far the government can go in trying to work around an existing Supreme Court decision. They are clearly trying to establish loopholes to the decision without having to try and overrule a decision. Likely because they know it won’t happen! The very fact that it asks enforcers to look to other regulations to punish the actors means that they know they can’t punish the actual act. It is protected. They can't change that, even though they're trying to.
I think this executive order exemplifies the power Trump thinks he holds with the Supreme Court. Because this executive order explicitly mentions Johnson we know that the administration knew this was not legal, but they chose to do so anyway. I would venture to say they did so likely with the understanding that any prosecution of flag burning will be challenged in court but they think the supreme court will side with them simply because of a shared political ideology.
I don't know if the Supreme Court would actually uphold a prosecution of flag burning but I do think there would at minimum be a dissent in the case. Similar to what we saw in Trump v. Barbara, I think the administration is likely not so wrong about every supreme court justice as at least one will be willing to throw aside the widely understood precedent/application of the constitution for political allegiance.
I find attempts to ban flag burning to be very ironic. They often aim to protect the "sanctity" of the flag as a symbol of freedom in the U.S., while simultaneously trying to limit people's freedom of expression. While I appreciate the value and symbolism of the flag, the rhetoric that the flag is the "most sacred and cherished symbol of the United States" is ultimately an opinion, and by banning flag burning, it is deemed the right one, which is antithetical to what the flag represents.
Texas v. Johnson was a 5-4 decision so the EO could be an attempt to get this before the court and possibly have that redecided as purely conduct that can be regulated. On its face it is clearly unenforceable. Fighting words also should be overturned. That is another facet of the hecklers veto and chills speech. I do agree that no reasonable person would think the flag burning was directed at them as insults and concerns issues of public concern when voicing displeasure for the government. Although, I think this is incredibly disrespectful to do, this is similar to Snyder where even deeply unpopular speech needs to be permissible. I do think this is closer to pure conduct than it is purely political speech, however.
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.
You’re absolutely right that the First Amendment limits only government action, not private criticism or social consequences. But one thing worth noting is that private power today often functions like public power. Large corporations (social media platforms, payment processors, major employers) can effectively silence or exclude someone from the modern public square faster than the government ever could.
That doesn’t make their decisions unconstitutional, but it does mean that private suppression of speech can feel just as coercive. When a handful of companies control the spaces where most speech happens, it’s understandable that people worry—not because they misunderstand the First Amendment, but because the stakes of private gatekeeping have become incredibly high.
I am not buying the fighting words or incitement angle here. Fighting words are supposed to be a personal insult thrown in someone’s face that would result in an immediate reaction, and incitement means actually trying to get people to commit imminent and immediate violence. The Court in Johnson held that burning the flag in protest is conduct expressing a message of disagreement about the policies of our country, and the fact that some people find it deeply offensive doesn’t just magically turn it into a threat. If Johnson had burned a dirty, old, or torn flag to dispose of it, Texas wouldn’t batted an eye, and out of the whole political demonstration, including the people who spray painted buildings and damaged property, Johnson was the only one prosecuted. An executive order encouraging prosecutors to stretch ‘neutral’ laws to reach flag burners specifically invites selective enforcement of those laws and targeting people for their political expression and opposition.
If a specific flag burning ever actually crossed the bridge into fighting words or incitement, we already have laws for that, because those are not categories of protected speech. This executive order is nothing but a weird nationalist workaround for viewpoint discrimination.
Flag burning is an interesting topic as it appears to me that the reason we even have so much discourse surrounding it is because of the patriotic message we have ascribed to it. But its permissibility is safeguarded by the First Amendment in the way that disfavorable speech is protected under the First Amendment.
The arguments for why burning the flag always seems to backwards to me, and I find it somewhat amusing and somewhat dumfounding that dissent's like Chief Justice Rehnquist's in Texas v. Johnson will parade about the importance of the flag as a national symbol, but in the same dissent discuss how that means it is important to tear down one of, if not the, most important values that the flag represents: Freedom from the government or the majority preventing how an individual can express their own beliefs.
To me, without the ability the burn the American flag, the flag itself is meaningless. The idea that burning the American flag undermines the flag is completely contrary to reality and logic. There is hardly a more American image than a protestor burning the flag with another protestor waiving the flag, mere feet away. What makes the American flag great, and with it the country of America great, is the fact that this ultimate freedom, this ultimate display of revolution against the nation, is one of the most valuable parts of what it means to be American. It is concerning that someone with the goal to "Make America Great Again" has forgotten what made this country great to begin with.
As the flag has become a symbol more associated with the right, and protests against the flag being associated with the left (at least in my view of the current political state of America), I have often seen conservatives complaining that people who disrespect the flag or other American symbols or institutions should leave the country (or as Trump said, should lose citizenship: https://abcnews.com/Politics/trump-flag-burners-lose-citizenship-spend-year-jail/story?id=43842355). In fact, I frequently joke (load bearing) that people who believe in government promoted censorship, which comes up a lot in my First Amendment discussions, should move to North Korea. With flag burning, that is the reality. The flags of North Korea, China, and Russia must be praised and saluted for fear of death. The American flag, meanwhile, is praised and saluted because of the freedoms that it represents. Taking away those freedoms is far more unAmerican than anything a flag burner could ever do.
Rereading Johnson for class I came away more convinced that Johnson was correctly decided and that the executive order leaves no real room around it. It is hard to burn a flag without saying something about the country. Even the respectful burning at a flag retirement ceremony communicates a message, which is exactly why the Texas law had to turn on whether observers would be “seriously offended.” Once the harm the government cares about flows from the message, the law is content-based, and Johnson tells us what happens next.
The order seems to know this. Its legal strategy is really O’Brien neutrality. By directing prosecutors to enforce existing laws against flag burning that causes harm “unrelated to the First Amendment,” it borrows O’Brien’s third prong almost word for word. But it also clearly tries to muddy the line between symbolic speech and the unprotected categories, leaning on fighting words and incitement. Johnson already closed that door: a generalized protest is not a direct personal insult, and an offended audience is not presumed to riot. Chief Justice Rehnquist made the same Chaplinsky argument in dissent and lost.
To me, the order is a strong illustration of why distrust of government is one of the core theories of free speech. Officials are poorly placed to decide which messages about the nation are acceptable, especially messages criticizing them. A neutral law does not need a preamble about restoring the flag’s “sanctity.” The Jay Carey prosecution shows the danger in practice. He was charged under ordinary park fire rules, but the arrest came directly from the order, and the charges were dismissed with prejudice. Even if no court ever accepts the fighting words theory, blurring these categories can chill dissent on its own.
The Trump administration's attempt to criminalize flag burning is just one example of a long line of the administration acknowledging that "we know the law doesn't exactly allow this" but we are going to try to do it anyway. I can't think of more of a core evil that the First Amendment is designed to prevent than the government attempting to suppress speech designed to express contempt of the government itself. It is an alarming attempt by the administration to say the least.
The dissent in Texas v. Johnson describes regulation of burning the flag as regulating disagreeable conduct, not disagreeable ideas. This is because burning the flag has historically been utilized to express discontent about a wide range of things, some which are in direct contradiction of each other. I believe that is the sentiment that those opposed to flag burning follow. However, flag burning does typically have one common thread, an opposition to the United States. Though the context is different, there is still an underlying "disagreeable idea" of opposing our country. Therefore, it should continue to be protected as expressive conduct.
In response to the EO mentioned in the article but also to many of the same arguments in the dissents of opinions we read for this section of class, I think it's really important to return to the majority's opinion in Texas v. Johnson that really eloquently explains exactly why it's so important to protect the freedom of expressive conduct. Brennan writes, "[We] are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. [It] is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag—and it is that resilience that we reassert today. The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. [Precisely] because it is our flag that is involved, one’s response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." I think it's completely right that the way to "change the minds" of anyone that we might perceive to be on the wrong side of a debate is not suppression, but it requires real engagement to identify the roots of verbal or expressive conduct to either remedy the problem or to disengage its supporters.
I think Brennan's point about counter speech gets to the core of every building block that got us through the first half of the semester up to now, where the consensus seems to be that suppression does not eliminate thought/belief/further action. Further, I think that the point many of the cases made about not ruling in support of bans on expressive conduct because it would require them to force political beliefs on the larger citizenry is something that we see the dissents appearing rather in support of, which I suppose really isn't surprising and is something we see on the polar ends of any major hot-button first amendment issue.
This exectutive order was not enacted to actually punish symbolic speech, or to punish anything at all, it was to please your uncle who never stops talking about ANTIFA.
Generally speaking, when it comes to flag burning, I really like the quote about how banning the right to burn the flag dilutes the freedom that makes the symbol so revered.
The executive order is clearly a violation of the First Amendment and the ruling in Johnson. I don't really understand the purpose of this executive order, as the article implies, reverence cannot be legislated back into public life. I do not think burning the flag on its own counts as imminent lawless action or as fighting words. The administration's actions concerning the First Amendment are very upsetting as we saw many student activists recently targeted. These are the exact situations the First Amendment is meant to protect against.
A lot of the thread is circling the conduct versus speech line, and rereading Johnson I don't think the Court really decided it there. It just took the conduct as expressive enough to get into the First Amendment and went straight to Texas's two interests. The breach of the peace one dropped out because no disturbance actually occurred or threatened to occur. The nationhood interest is what actually did the work, and the Court said those concerns "blossom only when a person's treatment of the flag communicates some message," which put the case "outside of O'Brien's test altogether." That feels like the part that matters for the order. The order's whole move is to point prosecutors at other laws, but under Johnson it isn't really about which law gets used, it's whether the interest behind the enforcement depends on the message. If it does, O'Brien drops out the same way it did for Texas.
I think it’s shocking that, despite the existing opinion in Texas v. Johnson, the executive order still tries to frame the flag as a symbol that deserves special protection from “unpatriotic” behavior. It seems directly contradictory to the idea that the First Amendment protects speech regardless of whether the government agrees with the message. Everything we have been reading makes it clear that the First Amendment is especially important when it protects speech that people disagree with or find upsetting. I think this also raises an interesting question about how far the government can go in trying to work around an existing Supreme Court decision. They are clearly trying to establish loopholes to the decision without having to try and overrule a decision. Likely because they know it won’t happen! The very fact that it asks enforcers to look to other regulations to punish the actors means that they know they can’t punish the actual act. It is protected. They can't change that, even though they're trying to.
I think this executive order exemplifies the power Trump thinks he holds with the Supreme Court. Because this executive order explicitly mentions Johnson we know that the administration knew this was not legal, but they chose to do so anyway. I would venture to say they did so likely with the understanding that any prosecution of flag burning will be challenged in court but they think the supreme court will side with them simply because of a shared political ideology.
I don't know if the Supreme Court would actually uphold a prosecution of flag burning but I do think there would at minimum be a dissent in the case. Similar to what we saw in Trump v. Barbara, I think the administration is likely not so wrong about every supreme court justice as at least one will be willing to throw aside the widely understood precedent/application of the constitution for political allegiance.
I find attempts to ban flag burning to be very ironic. They often aim to protect the "sanctity" of the flag as a symbol of freedom in the U.S., while simultaneously trying to limit people's freedom of expression. While I appreciate the value and symbolism of the flag, the rhetoric that the flag is the "most sacred and cherished symbol of the United States" is ultimately an opinion, and by banning flag burning, it is deemed the right one, which is antithetical to what the flag represents.
Texas v. Johnson was a 5-4 decision so the EO could be an attempt to get this before the court and possibly have that redecided as purely conduct that can be regulated. On its face it is clearly unenforceable. Fighting words also should be overturned. That is another facet of the hecklers veto and chills speech. I do agree that no reasonable person would think the flag burning was directed at them as insults and concerns issues of public concern when voicing displeasure for the government. Although, I think this is incredibly disrespectful to do, this is similar to Snyder where even deeply unpopular speech needs to be permissible. I do think this is closer to pure conduct than it is purely political speech, however.
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.
You’re absolutely right that the First Amendment limits only government action, not private criticism or social consequences. But one thing worth noting is that private power today often functions like public power. Large corporations (social media platforms, payment processors, major employers) can effectively silence or exclude someone from the modern public square faster than the government ever could.
That doesn’t make their decisions unconstitutional, but it does mean that private suppression of speech can feel just as coercive. When a handful of companies control the spaces where most speech happens, it’s understandable that people worry—not because they misunderstand the First Amendment, but because the stakes of private gatekeeping have become incredibly high.
I am not buying the fighting words or incitement angle here. Fighting words are supposed to be a personal insult thrown in someone’s face that would result in an immediate reaction, and incitement means actually trying to get people to commit imminent and immediate violence. The Court in Johnson held that burning the flag in protest is conduct expressing a message of disagreement about the policies of our country, and the fact that some people find it deeply offensive doesn’t just magically turn it into a threat. If Johnson had burned a dirty, old, or torn flag to dispose of it, Texas wouldn’t batted an eye, and out of the whole political demonstration, including the people who spray painted buildings and damaged property, Johnson was the only one prosecuted. An executive order encouraging prosecutors to stretch ‘neutral’ laws to reach flag burners specifically invites selective enforcement of those laws and targeting people for their political expression and opposition.
If a specific flag burning ever actually crossed the bridge into fighting words or incitement, we already have laws for that, because those are not categories of protected speech. This executive order is nothing but a weird nationalist workaround for viewpoint discrimination.
Flag burning is an interesting topic as it appears to me that the reason we even have so much discourse surrounding it is because of the patriotic message we have ascribed to it. But its permissibility is safeguarded by the First Amendment in the way that disfavorable speech is protected under the First Amendment.
The arguments for why burning the flag always seems to backwards to me, and I find it somewhat amusing and somewhat dumfounding that dissent's like Chief Justice Rehnquist's in Texas v. Johnson will parade about the importance of the flag as a national symbol, but in the same dissent discuss how that means it is important to tear down one of, if not the, most important values that the flag represents: Freedom from the government or the majority preventing how an individual can express their own beliefs.
To me, without the ability the burn the American flag, the flag itself is meaningless. The idea that burning the American flag undermines the flag is completely contrary to reality and logic. There is hardly a more American image than a protestor burning the flag with another protestor waiving the flag, mere feet away. What makes the American flag great, and with it the country of America great, is the fact that this ultimate freedom, this ultimate display of revolution against the nation, is one of the most valuable parts of what it means to be American. It is concerning that someone with the goal to "Make America Great Again" has forgotten what made this country great to begin with.
As the flag has become a symbol more associated with the right, and protests against the flag being associated with the left (at least in my view of the current political state of America), I have often seen conservatives complaining that people who disrespect the flag or other American symbols or institutions should leave the country (or as Trump said, should lose citizenship: https://abcnews.com/Politics/trump-flag-burners-lose-citizenship-spend-year-jail/story?id=43842355). In fact, I frequently joke (load bearing) that people who believe in government promoted censorship, which comes up a lot in my First Amendment discussions, should move to North Korea. With flag burning, that is the reality. The flags of North Korea, China, and Russia must be praised and saluted for fear of death. The American flag, meanwhile, is praised and saluted because of the freedoms that it represents. Taking away those freedoms is far more unAmerican than anything a flag burner could ever do.
Rereading Johnson for class I came away more convinced that Johnson was correctly decided and that the executive order leaves no real room around it. It is hard to burn a flag without saying something about the country. Even the respectful burning at a flag retirement ceremony communicates a message, which is exactly why the Texas law had to turn on whether observers would be “seriously offended.” Once the harm the government cares about flows from the message, the law is content-based, and Johnson tells us what happens next.
The order seems to know this. Its legal strategy is really O’Brien neutrality. By directing prosecutors to enforce existing laws against flag burning that causes harm “unrelated to the First Amendment,” it borrows O’Brien’s third prong almost word for word. But it also clearly tries to muddy the line between symbolic speech and the unprotected categories, leaning on fighting words and incitement. Johnson already closed that door: a generalized protest is not a direct personal insult, and an offended audience is not presumed to riot. Chief Justice Rehnquist made the same Chaplinsky argument in dissent and lost.
To me, the order is a strong illustration of why distrust of government is one of the core theories of free speech. Officials are poorly placed to decide which messages about the nation are acceptable, especially messages criticizing them. A neutral law does not need a preamble about restoring the flag’s “sanctity.” The Jay Carey prosecution shows the danger in practice. He was charged under ordinary park fire rules, but the arrest came directly from the order, and the charges were dismissed with prejudice. Even if no court ever accepts the fighting words theory, blurring these categories can chill dissent on its own.
The Trump administration's attempt to criminalize flag burning is just one example of a long line of the administration acknowledging that "we know the law doesn't exactly allow this" but we are going to try to do it anyway. I can't think of more of a core evil that the First Amendment is designed to prevent than the government attempting to suppress speech designed to express contempt of the government itself. It is an alarming attempt by the administration to say the least.
The dissent in Texas v. Johnson describes regulation of burning the flag as regulating disagreeable conduct, not disagreeable ideas. This is because burning the flag has historically been utilized to express discontent about a wide range of things, some which are in direct contradiction of each other. I believe that is the sentiment that those opposed to flag burning follow. However, flag burning does typically have one common thread, an opposition to the United States. Though the context is different, there is still an underlying "disagreeable idea" of opposing our country. Therefore, it should continue to be protected as expressive conduct.
In response to the EO mentioned in the article but also to many of the same arguments in the dissents of opinions we read for this section of class, I think it's really important to return to the majority's opinion in Texas v. Johnson that really eloquently explains exactly why it's so important to protect the freedom of expressive conduct. Brennan writes, "[We] are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. [It] is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag—and it is that resilience that we reassert today. The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. [Precisely] because it is our flag that is involved, one’s response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." I think it's completely right that the way to "change the minds" of anyone that we might perceive to be on the wrong side of a debate is not suppression, but it requires real engagement to identify the roots of verbal or expressive conduct to either remedy the problem or to disengage its supporters.
I think Brennan's point about counter speech gets to the core of every building block that got us through the first half of the semester up to now, where the consensus seems to be that suppression does not eliminate thought/belief/further action. Further, I think that the point many of the cases made about not ruling in support of bans on expressive conduct because it would require them to force political beliefs on the larger citizenry is something that we see the dissents appearing rather in support of, which I suppose really isn't surprising and is something we see on the polar ends of any major hot-button first amendment issue.
This exectutive order was not enacted to actually punish symbolic speech, or to punish anything at all, it was to please your uncle who never stops talking about ANTIFA.
Generally speaking, when it comes to flag burning, I really like the quote about how banning the right to burn the flag dilutes the freedom that makes the symbol so revered.