Does Flag Burning Incite Violence?

Episode Transcript

Speaker 1 (00:00):
President Trump signed an e yesterday making burning a flag
a criminal, a crime punishable by a year in jail.
He tweeted about it yesterday afternoon, saying, you know, notwithstanding
the Supreme Court's rulings in the First Amendment protections, the
Court has never held an American flag desecration conducted in

(00:23):
a manner that is likely to incite lawless action or
fighting words is constitutionally protected. That's debatable, but this is
the tweet as it continues. The American flag is the
most sacred and cherished symbol of the United States of America,
and desecrating it is uniquely and inherently offensive and provocative.

(00:46):
It is a statement of contempt and hostility toward our
nation and an act used by groups of foreign nationals
calculated to intimidate and threaten violence against Americans. I don't
disagree with that statement that the bad amara as being
the most cherished symbols. He's been a critic of flag
burning for a very long time. He's this is nothing

(01:08):
new for him. What is new assigning an executive order
that basically encroaches upon the standards that were set up
by the Supreme Court in the in Texas versus Johnson,
the nineteen eighty nine case that allows flag burning as
as a form of political expression for freedom of speech

(01:31):
as long as nobody is hurt by it. That's essentially
what the what the case stands for. And President Trump
has said, yeah, we don't think that that's sufficient. And
I think he's asking for this case to be for
his executive order to be challenged because he wants more
codification and Congress has fallen short on doing it. I

(01:54):
just think this is the wrong way, and I agree
with people who have called and said it's the wrong
time to do this because he may be handing a
political win to his opponents when it's kind of a
unenforced error. He doesn't really need to do that. Right now,
let's go to Bob in Rain and Bob, welcome to
w RKO. How are you.

Speaker 2 (02:18):
All right?

Speaker 3 (02:18):
Andy?

Speaker 1 (02:19):
Hey, So, do you do you agree with the president's order?

Speaker 3 (02:23):
I do not agree with the president's so order. However,
I do believe it should be a you know, some
sort of offense, at least a fine or something. And
I'll say this, I believe, as has kind of been
said in previous calls, if I go to a gay

(02:43):
pride event and I burn a you know, gay pride flag,
I'm probably going to get arrested for at least disturbing the.

Speaker 4 (02:53):
Peace, which I believe I should be.

Speaker 3 (02:56):
And I believe the same should be said for the
American flag or even you know, if you went to
you know, a Palestinian Israeli protests and either side burnt
the other flag, you're certainly inciting violence sand or you know,
disturbing the peace at the very least. So I think
it should be. I think it should be an arrestable offense.

(03:19):
But as far as serving a year a year in jail,
I think that's crazy. And as far as Congress acting
on it, I believe this is sort of a separate issue.
But I believe that Congress is turning all presidents into
dictators because they don't act anymore. All they do is

(03:42):
act on potty lines. There's no spirited debate. I mean,
we've been at war for I'm going to say half
of my sixty five years of life, and yet Congress
hasn't declared war since nineteen forty one. I mean, they
just they just they don't act. Yeah, they do not act.

Speaker 2 (04:03):
Well.

Speaker 1 (04:03):
I agree that there is an issue with Congress. They
that they need to they need to focus more on
actually getting things done than they do on, you know,
getting getting their face and their voice on the evening news.
But what you said regarding burning the flags inciting violence
and disturbing the piece, I don't think it's inciting violence.

(04:23):
It's it's unless violence actually occurs at that point in time.
You can't say something insides violence because then what you're
doing is you're saying everything insides you know, because it's
happened two months later. Because it's very difficult unless something
actually physically results in violence right then and there, you
can't say it insites violence, and you can't assume that

(04:44):
it incites violence. In regard to disturbing the peace, the
Supreme Court specifically held in the Texas versus Johnson case
that burning the flag did not reach the bar to
to prove disturbing the piece. It was not disturbing the peace.

(05:05):
They specifically held that phrase with that action did not occur.
So you can't assume that's flying in the face of
the Supreme Court right then and there saying it disturbs
the peace. It doesn't. They've ruled it doesn't. So that
would take you back to your inciting violence. Okay, it's
possible that it would incite violence, but I think in

(05:26):
that case it needs to be taken on a case
by case basis. So you'd have to look at any
particular moment where somebody burned a flag, did somebody get
hurt in that immediate environment? Did something happen there that
caused somebody to get hurt? That's inciting violence? Was does
somebody you know, see that and then throw a brick
through a window or hurt somebody or you know, physically

(05:47):
abuse somebody. That's what you have to look at. But
you can't assume that the action what the Supreme Court
is saying, You can't assume that the action is going
to incite violence, which is and the Supreme Court case
to give President Trump is due. The Texas versus Johnson
case deals specifically with the Texas desecration laws, no other laws,
just that one. And that law found that burning the

(06:10):
flag was disturbing the peace, and the Supreme Court said,
uh no, no it doesn't. But the inciting the violence
is still open for interpretation. They have yet to have
a case that deals specifically with that, and maybe that
is what President Trump is looking for Bob. Maybe he's
looking for the case where somebody has gotten hurt or

(06:31):
damage has been done to property, there's some kind of
violence that occurred. So perhaps that's exactly what he's looking for,
is to see have that adjudicated, because it hasn't yet
by the Supreme Court. What do you think.

Speaker 3 (06:47):
And to go forward? Not even you know, I know
we're talking about flag burning, but what if I walk
through a black neighborhood with a Confederate flag. I mean,
I'm certainly disturbing the peace.

Speaker 1 (06:58):
I'll probably give be disturbing the peace, not by the
Supreme Court standards, but you might incite violence. So it's
not illegal for you to carry a Confederate flag through
a black neighborhood. That's the point. But it would be
stupid and you would probably upset a lot of people.
But upsetting people is not illegal either. Our text number

(07:19):
seven zero four seven zero criminalizing flag burning the Supreme
Court and the First Amendment saying that's a fast as
long as no one has hurt. What do you say.
Let's go to Chris in Florida. Chris, what do you think?
Did President Trump do the right thing and signing the
executive order.

Speaker 2 (07:39):
I think the year was a little much, but no,
you know what bothers me, Chris, could you pick up
your phone?

Speaker 1 (07:48):
If the speakers is a bit of an echo on it,
could you pick up your phone for us? Are you there, yeah,
can you pick up the phone?

Speaker 2 (07:57):
Okay, I think there was a little much, but I
get a little perturbed a people that are ignorant through
our ear is history. You know, before the Johnson case
that was signed into law in eighty nine but came
before the court in eighty four, it was against the law,

(08:21):
federal law to burn a flag in public. People can
buy a flag and burn it on their property, but
nobody has the right to burn only thing in public.
That would be like me saying, you know, you got
to get back to critical thinking with logic. You know,
if it's burned one flag, a burn a flag is

(08:42):
a symbol in public, then my attitude towards Chinese cause
I should be able to burn a Chinese type of
guess what. People say, Well, that's a little extreme, Chriss,
and I say, you know what's not. You've got to
have equal protection under the law. You're a lawyer, Sandy,
and you should know this that you can't referring to

(09:05):
the Supreme Court has always said you know what, he
hasn't he has always done blah blah blah.

Speaker 1 (09:11):
I didn't know, Chris. I've never said the Supreme Court
always did anything. I said. The Supreme Court from nineteen
eighty nine held this about flag burning. And not only that,
but earlier in the day, I gave pretty much a
complete history in the first section of the show today,
gave a pretty complex and complete listing of what has

(09:32):
happened with flagburning going back to nineteen oh seven. So no,
I have not done that. So let's not make blaken
statements like.

Speaker 2 (09:40):
That Democrat voter that did the burning at a Republican convention. Yeah,
these things matter. These things matter as evidence that other
issues are in play to cause these events. Long story
short is that we right now, these events from twenty

(10:05):
fifteen have instigated and this is all part of the
overall picture a civil war. We are in civil war.

Speaker 3 (10:14):
You know.

Speaker 2 (10:14):
I get tired to the people that think that one
minute there's no civil war, and then the next minute,
the next day, there's no blown civil war. That's not
how civil wars work. We are watching the events leading
up to civil war but we've already been in the
Civil War and the Democrats have always instigated this stuff.

(10:36):
I could go on and on with history. I have
a thirty plus year hobby history. People got to get
to know their history of this country. It's extremely Our
founders wouldn't listen. It was against the law federally to
burn the symbol of our freedom up until nineteen eighty nine,

(10:56):
when it was actually signing to law. All those years before.
The people were incorrect. No, there's agendas, and we've got
to get back to the history to see the agendas
that are going on in certain areas of human intervention.

(11:18):
Saying the government that's a misnomber because also our government
is United States Constitution an entirely people using generalities to
indicate when human involvement is involved. We've got to start
naming names of people doing stuff within our government to
actually be able to streighten it out by addressing those

(11:39):
human beings.

Speaker 1 (11:40):
Thank you, well, you know you're welcome. Thank you for
taking the time and trouble to call Chris. I appreciate it.
The one thing I do agree with you on is
that the past is prologue. That I do agree that
you need to look at history and learn from it
and not ignore it. Maybe that's what President Trump is
doing when he signed the executive world, or maybe he's thinking, let's,

(12:02):
you know, let's learn from past mistakes. We need to
make desecrating the flag an exception to the First Amendment.
And maybe that's what he's trying to provoke with his
executive order. I hope he's trying to do something like that,
as opposed to just do an end run around the
Supreme Court. Dave from North Carolina, Welcome to WRKO. How
are you, Dave?

Speaker 2 (12:23):
Good?

Speaker 4 (12:23):
How you doing? Sandy, Good to be talking with you.

Speaker 1 (12:26):
Well, thanks for taking the time and trouble to call.

Speaker 2 (12:28):
Dave.

Speaker 1 (12:29):
Do you agree with President Trump's executive Order?

Speaker 4 (12:33):
You know, I'll be honest with you. I do agree
with it, just because I think he's bringing things to
the forefront. One of the things that President Trump always
does and we always second guess him and he always
ends up being right, is he brings these issues to
a point and we get to talk about it and
it comes to light. And from my personal standpoint, my family,

(12:58):
my father fought in World War or two, was dropping
bombs on Germany, and my mother was a German a
young girl. And I remember when she, long after she
became an American citizen, she told me this story.

Speaker 2 (13:11):
She goes.

Speaker 4 (13:12):
I remember, she goes, I was in Maine and I
went in to take the oath and she said. I
looked in the walking into the city hall, and she goes,
I saw the American flag flying, and she said, I
looked at it, and I said, that's a symbol. It's
a symbol of liberty of life and the pursuit of happiness.

(13:33):
And that's my personal thought is that the flag is
a symbol. It isn't a god. It's an idea. It's
an idea that people can live in this country. They
can read what they want to read, they can believe
who they want to believe, and all that's beautiful. And
I just think by tearing that symbol down and stalking

(13:57):
on it or burning it, you're burning the idea. And
if you burn the idea, what's left? Is there anything
truly better than this country? I mean I really say no.
I boys, yeah, all those boys and girls that are fought,
they're holding they're holding up this country. And it just
really you know, President Trump does it. I mean, every

(14:20):
time I sit there and I go, why is he
doing this? And this is stupid and this is a
bad time, and people are saying, oh, he's just given
the other side farder to fight against him in election
times and all this time and every time, the guy
is right and he's the only one that's ever taken
a bullet for me and for this country other than

(14:41):
the soldiers that have died for it and the soldiers
that are serving now. And I think it's a good idea.
I mean, he's bringing it forward. And I'll be honest
with you, I think what's going to happen is the
left is going to tear themselves a part over us.

Speaker 1 (14:54):
Yeah, I think you're right about that. And I agree
with you about the symbolism and what it means, and
what it means to me is very similar to what
it means to you. I agree with this sentiment behind
why President Trump would be doing this. I think that's correct.
I just disagree with how he's doing it. I think
that we are precariously in a position where there are

(15:17):
too many people who are trying to ignore the rule
of law in this country. So anything that even closely
resembles ignoring the rule of law to me is something
to be shied away from, and so that's part of
my issue with him signing this executive order. Even though
it has the exemption it has to cause violence, which

(15:39):
he says is a loophole in the Texas versus Johnson case,
and they would only prosecute it where the prosecution would
not run a foul of the First Amendment in both
those instances, I am I'm not comfortable because, first of all,
all the cases, the desecration cases that have been in

(16:00):
front of the Supreme Court, none of them have really
involved violence. So that's why there is that loophole that exists.
But more than that, when they say as long as
it does not run to follow the First Amendment, I
don't see a situation where that ever happens, because the
Supreme Court has held that burning the flag is a
freedom of speech issue. It is protected freedom of speech.

(16:24):
It is a political expression within the definition of the
First Amendment of the Constitution. So it's like saying, you know,
we'll catch all frogs, except where they're frogs. It just
you can't. It doesn't exist. So I think there may
have been a better way to bring patriotism to the forefront.

(16:48):
I don't know what that is, and you are absolutely right,
and that President Trump does things that are not easily
explainable to a majority of people, and then they turn
out to be correct. This is the I'm sitting in
for Jeff Kooner, and we're talking about President Trump's signing
of an executive order on flag burning. It was titled

(17:09):
Prosecuting Burning of the American Flag, and it does not
direct the Attorney General to prosecute those who burn flags
in and of itself for the act itself. Rather, it
says the Justice Department should bring cases against acts of
American flag desecration that violate applicable content neutral laws while

(17:31):
causing harm unrelated to expression consistent with the First Amendment
and the laws that are example. They give examples of
those laws and is violent crimes, hate crimes, a legal
discrimination against American citizens, or other violations of American civil rights,
and crimes against property and peace. And the order also

(17:51):
directs the Secretary of State, the Attorney General, and the
Secretary of Homeland Security to take action against foreign now
nationals who've engaged in American flag desecration activity by revoking
their Visus resident permits or seeking their removal. Here's the
problem with the order. The President does not have the

(18:13):
power to change the First Amendment, and flag burning as
a form of political expression of political protest is protected
by the First Amendment and the Supreme Court in the
case of Texas versus Johnson, and it's been so since
nineteen eighty nine. While people can be prosecuted for burning

(18:39):
anything in a place that they're where, they're not allowed
to set a fire on a public street. The government
can't prosecute protected free speech expressive activity even if other
people find it uniquely offensive and provocative. You don't have
to like flag burning, or support flag burning, or everyone

(19:00):
to see flag burning. You can condemn it. You can
hold your own protest against flag burning. But the thing
about free speech is that you get to express your
opinions even if other people don't like what you have
to say. So, even though I find flag burning disgusting,

(19:23):
that person has a right to burn the flag under
the First Amendment and according to the Supreme Court. So
I don't see where President Trump has the right to
issue an executive order making that criminal a criminal speech. Basically,
let's talk to Tim in South Carolina. Tim, Welcome to WRKO.

Speaker 5 (19:42):
How are you, hi, Sandy, Good morning. I usually do
not like to speak in hypotheticals because I've always found
them unproductive. I assume as an attorney you agree, But
I have to say here though, if President Trump signed
an exis secutive ordered yesterday saying that it's okay to

(20:04):
burn the flag, I guarantee you Bill from Sidebury would
have taken the complete opposite stance. All of the Trump
derange would this is modus operande for them? How dare
he say that it's okay to burn the flag that?
And then he would go into his tirade. So I

(20:27):
really wanted to bring up that point. Also, my answer
to your question is yes, I agree with President Trump.
I think. I think if I walked down the street
and I just started a fire in a public place.
I don't know if this has been brought up yet,
but if I started, I mean, isn't that an arrestable offense?

(20:49):
Off the bat Well, it.

Speaker 1 (20:50):
Depends on where you are, but yeah, I would say probably, yes, yeah,
But we're not talking about generally setting fires. You know,
setting a forest fire is also at a rest of
all offense, but that's not what we're talking about. We're
talking about burning a flag. And there's nothing in President
Trump's executive order that says burning a flag on a
public street. It says burning a flag, which means you

(21:11):
could be doing it in your own yard and it's
still a problem.

Speaker 2 (21:16):
Right.

Speaker 5 (21:16):
I think he's trying to bring nationalism back. I think
he is. I think he's all aboard on this Golden
Age idea of just being American again. I think it's
a slight to the public schools, the universities. I think
he's taking them all on.

Speaker 1 (21:34):
I think you're right. I think that's exactly what this
is about. And I think he's hoping this is challenged.
But I don't think he cares one way or the
other because he's want I think you put your finger
on it. I think he wants people to think about
the American flag and about patriotism and about how proud
they are. Essentially, unless your name is Michelle Obama to

(21:56):
live in this country. So thank you for the call
to him. I appreciate it. Squeeze and how from New Hampshire.
How welcome to WRKO. How are you sir?

Speaker 6 (22:04):
Oh good, thank you to taking a call. I have
mixed thoughts on this action. I hate burning anything any
flag I think would be wrong, even flags that I detest,
like the UN flag and the flag of communists China.
I think it sends a wrong message, you know, and
of course where it happens. But I want to make

(22:24):
reference to a case in twenty nineteen in Iowa from
Ay with that No, there was a fellow he stole
a rainbow flag from a church. I mean he set
out on fire in front of a nightclub, and for
the vandalism for stealing he got six months. For the fire,

(22:46):
he got a two years, but for the act of
burning the rainbow flag they added I tak two or
three years too. He ended up getting sixteen years. But
because he was a convicted felon, you know, they just
put him away.

Speaker 2 (22:59):
But for the act for what they call it.

Speaker 1 (23:01):
A hate crime? Is that why they is that what
they how they they worded it so that it would
have the jail time attached to it. I'm sorry, hal,
I wish we had more time, but we're up against
it because that's what it sounds like to me. It
sounds like I'm actually gonna go read that case now.