August 28, 2025 • 22 mins
David Cole, a professor at Georgetown Law who represented flag burners in landmark Supreme Court decisions, discusses President Trump's executive order directing the prosecution of people who burn the American flag.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
And what the penalty is going to be. If you
burn a flag, you get one year in jail, no
early exits, no nothing. You get one year in jail.
If you're burn a flag, you get And what it
does is insight to write it.
Speaker 1 (00:23):
President Trump signed an executive order on Monday directing the
US Attorney General to prosecute people for burning the American flag.
But flag burning is protected under the First Amendment under
well settled Supreme Court precedence. In fact, none other than
the late Justice antonin Scalia, a conservative icon, was part
(00:46):
of the majority in the nineteen eighty nine case that
established that the Constitution protects burning the flag as a
form of symbolic speech.
Speaker 3 (00:56):
Yeah, if I were king, I would not allow people
to go about bernie the American flag. However, we have
a First Amendment which says that the right of free
speech shall not be abridged, and it is addressed in
particular to speech critical of the government. I mean that
was the main kind of speech that tyrants would seek
(01:17):
to suppress. Burning the flag is a form of expression.
Speech doesn't just mean written words or oral words. It
could be semaphore. Burning a flag is a symbol that
expresses an idea. I hate the government, the government is
unjust whatever.
Speaker 1 (01:35):
Trump call the justices who made that decision a quote
very sad court. And the order directs the Attorney General
to pursue litigation to challenge that nineteen eighty nine President.
Speaker 2 (01:48):
You get one year in jail, and it goes on
your record and you will see flag burning sapping immediately.
Speaker 1 (01:55):
But just two hours later, a combat veteran burned an
American flag across the street from the White House to
protest the executive order targeting flagburning.
Speaker 4 (02:07):
I'm burning it flag at the progress that illegal statics, President,
that's in that house.
Speaker 1 (02:15):
My guest is David Cole, a professor at Georgetown Law.
He represented the men who burned the flags in the
two leading Supreme Court cases. David, there's a long history
in this country of desecrating or burning the flag as
a form of political protest. That goes back to the
Civil War. But states and even Congress have passed laws
(02:37):
to prevent flag burning. Tell us about the Seminole case
the Supreme Court decided in nineteen eighty nine, where you
represented Gregory Lee Johnson.
Speaker 5 (02:47):
Sure so. Gregory Johnson burned an American flag in Dallas, Texas,
in a protest outside of the Republican National Convention that year,
and was skeetered under a Texas statute that made it
a crime to burn the flag in a way that
would deeply offend onlookers. He was convicted in the trial court.
(03:11):
That conviction was overturned by the highest court in Texas,
but Texas took the case up to the Supreme Court,
and the Supreme Court in Texas versus Johnson, ruled that
the government may not criminalize expression through the burning of
a flag simply because people find that message offensive.
Speaker 1 (03:33):
It was a five to four decision, but it didn't
divide the court down ideological lines. In fact, conservative icon
Justice Antonin Scalia was in the majority. Why do you
think it didn't go down ideological lines?
Speaker 5 (03:47):
So that's a great question. We won the case with
the votes of two Republican appointees, Justice Kennedy and Justice Scalia.
Both of them, I think, you know, over time, showed
themselves to be committed to the First Amendment. Justice Stevens
also a committed First Amendment to Justice dissented, I think
in his case, it came down to the fact that
(04:08):
he was a veteran. He was a veteran of World
War Two. He clearly was deeply offended by the very
practice of burning the flag and therefore dissented. But over time,
I think, you know, if you look back at the
cases that preceded Texas serviss Johnson, many justices, including liberal justices,
(04:31):
expressed some reservation about whether or not flag burning should
be protected by the First Amendment. So it's not something
that has divided the country along partisan lines, and will you.
Speaker 1 (04:42):
Explain the thinking of the justices in the majority and
in the discent.
Speaker 5 (04:47):
So the majority held that the justification for throwing someone
in jail for burning the flag is that the message
sent by engaging in that conduct is offensive. And the
court held that under the First Amendment, the government has
to maintain neutrality in the field of expression. Can't punish
(05:13):
speech simply because it or a majority of people find
a particular message to be offensive. Once you go down
that road, virtually anything can be prohibited by the government
because one man's offense is another man's truth. The dissent argued, well,
this is really not so essential a form of expression.
(05:36):
Chief Justice Rank was called flag burning quote an inarticulate grunt,
And there's a very powerful interest in preserving the unity
that the symbol expresses, and therefore states should be permitted
to prescribe how people can use the flag. They can
waive it, but they can't burn it.
Speaker 1 (05:58):
One year later, Congress passed a law criminalizing burning the
American flag, and in another case where you represented the defendant,
the Supreme Court struck down that law right.
Speaker 5 (06:10):
This case was called the United States versus Iikmen, and
it basically stemmed from Congress's response to Texas versus Johnson.
The Johnson decision came down, as controversial decisions often do,
right before the fourth of July. Congress decided in its
wisdom to stay in session rather than go out for
the fourth of July recess, so that virtually every member
(06:33):
of Congress, democratic and Republican alli could get up at
the lectern and denounce the Supreme Court for this unpatriotic decision.
And then Congress proceeded in the following year to amend
federal law to prohibit flag burning and purportedly to avoid
the particular problems that the Texas statute that the Court
(06:56):
had struck down in Texas versus Johnson had So you
had Democrats and Republicans alike voting in favor of the
Federal Flag Protection Act and maintaining that notwithstanding with the
Supreme Court said in Diagnos missus Johnson, it should be
a crime to burn the American flag. And that law
(07:16):
was violated the day it took effect in two cases,
and I was counsel for the defendants in both of
those cases. That went right up to the Supreme Court
the following year, and the Court essentially said, we meant
what we said a year ago. The only justification for
prohibiting the burning of an American flag is the message
(07:39):
that it sends. That that message is deemed defensive by people.
The fact that speech is deemed defensive by people is
not a justification for throwing people in jail. It's, in fact,
a justification for protecting that speech. And so the Court
struck down the Federal Flag Protection Act on the same
five to four vote.
Speaker 1 (08:01):
So President Trump is also with this executive order calling
for Attorney General Pam Bondy to pursue litigation to challenge
the Supreme Court's ruling. In nineteen eighty nine, this Supreme
Court is very different from that Supreme Court. Do you
think that they would still uphold the president.
Speaker 5 (08:21):
Yes, this court is different from the court from nineteen
eighty nine to nineteen ninety. But this is, if anything,
an even stronger pro First Amendment court, and Texas versus
Johnson is not just the kind of one off. It
is cited again and again and again for this basic premise,
probably the most fundamental premise of pre speech law, which
(08:44):
is the fact that speech offends somebody is not a
justification for the government to throw the speaker in jail.
And that's ultimately what punishing flag burners is about. It's
about throwing them in jail because we would be, you know,
very pleased if they waive the flag. We are very
(09:04):
upset if they burn the flag. But either way, you
are using the flag to express a message, and the
government is not allowed to tell us what messages we
can and cannot express through symbolic speech or otherwise.
Speaker 1 (09:20):
Now, Trump's executive order doesn't direct the Attorney General to
prosecute those who burn flags for the flag burning itself,
but it says the Justice Department should bring cases quote
against acts of American flag desecration that violate applicable content
neutral laws while causing harm unrelated to expression, consistent with
(09:43):
the First Amendment. So the cases are going to be
limited to those where there's a violation of other laws.
Speaker 5 (09:52):
So this executive order is, I suppose, as befitting something
that is ultimately about symbols, almost entirely symbolic, because it acknowledges,
as it must, that the Supreme Court has decisively ruled
that you can't punish someone for burning a flag. And
what it does it says, well, there may be some
(10:12):
circumstances in which one could where the reason you're engaged
in the prosecution is not the burning of the flag
per se, but some other interest altogether. So, for example,
many towns and cities prohibit burning of anything in public
(10:34):
without a permit. You can't burn leaves, you can't burn
wood in public without a permit. That law can be
applied to the burning of an American flag because the
law is not about speech, it's not about what burning
a flag communicates. It's an environmental law or fire safety
law that is neutral as to speech. And it's long
(10:55):
been the case that that kind of law. In fact,
the Supreme Court is said that kind of law would
be perfectly permissible. It is very rare that that is
sphasis for a flag dessecration prosecution. However, and the other
example that the Trump puts forth these as well, if
somebody burned a flag in such a way as it
constituted incitement to imminent wawless action or fighting words, those
(11:20):
are not protected by the First Amendment. Even pure speech,
if it constitutes incitement to emminent wallless action or fighting words,
is not protected by the First Amendment. So if flag
burning fell into those very very narrow categories, you could
prosecute it. That's true, but sort of trivial and largely irrelevant,
(11:41):
because people burn flags not to engage in fighting words,
not to incite some imminent lawless action, but to protest
what the American government is doing. That's why they burn flags,
and that is exactly why flag dessecration laws were inactive,
and that the Supreme Court is held is an impermissible
(12:04):
justification for targeting any form of speech. So, yeah, if
you come up with a case, and I've not seen
one in my entire lifetime where someone burns a flag
in order to send a signal to some group that
is steeled to action to engage in illegal conduct. Well, sure,
just as you could criminalize that person from raising his
(12:28):
hand to incite that lawless action, you could penalize burning
a flag if it's being used for that purpose. But
it's really a null set And so I think at
the end of the day, Trump's executive order is itself
a kind of a nullity. It's a political act. It's
not going to have any real world effects, and it's
(12:50):
essentially theater engaged in by the President because it's good politics.
It's easy to be on the side of condemning the
burning of the American flag. That's why Democrats and Republicans
have done that for a long time. That's why forty
nine state legislatures voted to amend the Constitution after Texas versus.
(13:11):
Johnson and the United States versus Aikman, and the amendment
effort only failed by a few votes in the Senate.
Because the easy political act is to condemn these kinds
of expressions. The hard thing, the courageous thing, is to
protect them, even if we find them, and even because
we find them detestable and offensive.
Speaker 1 (13:32):
Coming up next, I'll continue this conversation with Georgetown law
professor David Cole did Trump just give the veteran who
burned the American flag outside the White House a defense?
This is Bloomberg. President Donald Trump signed an executive order
on Monday requiring the Justice Department to investigate and prosecute
(13:56):
people for burning the American flag, something the Supreme Court
has ruled is legitimate political expression protected by the Constitution.
But within two hours of Trump signing the executive order,
Jay Carrey, a US Army veteran, burned an American flag
outside the White House in protest.
Speaker 4 (14:16):
I'm burning this flag as the progress that illegal fact
that president that sits in that house.
Speaker 1 (14:24):
Carrie told Fox News he's ready to fight any federal
charges in court.
Speaker 6 (14:29):
It wasn't a matter of a disrespecting the flag. I'm
a veteran. I fought under that flag with that fight
for that flag is a matter of protesting against what
the President was putting out in an executive order because
he feels he can do anything that he wants, and
that's just not the case.
Speaker 1 (14:43):
I've been talking to Professor David Cole of Georgetown Law,
who represented the men who burned flags in the two
leading Supreme Court cases. A combat veteran burned a flag
outside the White House on Monday in protest of Trump's
executive order targeting flag burning. He was detained by Secret
(15:03):
Service for igniting an object, then turned over the US
Park Police and arrested. He was issued too citations, not
for burning the flag, but for setting a fire in
an unsecured place and for damaging park property. Does he
have a defense that he's being selectively prosecuted or is
that a straightforward citation?
Speaker 5 (15:26):
So I think in the absence of Trump's executive order,
it would be a straightforward citation. That is, of course,
the federal government is permitted to ban burning things on
federal property, and it can ban burning flags along with
burning leaves or anything else on federal property, and that
wouldn't raise a serious First Amendment objection even if someone
(15:48):
burned a flag for protest. But now that Trump has
issued this executive order and basically announced I'm as the
President United States, I am directing the Justice Department to
prosecute flagburners. Why because flagburning expresses an offensive message that
essentially gives this protester evidence of selective prosecution. He can
(16:13):
introduce as exhibit A in his defense the fact that
the President announced the day before he was arrested that
the government would target people who burn flags using other laws,
but doing so because the President disapproves of the message
that is sent. And so he now has a defense
(16:34):
that he wouldn't have had had the President not issued
that executive.
Speaker 1 (16:38):
Order and the Army veteran Carrie said he wants the
DCUs attorney to bring federal charges. He welcomes the challenge,
and he's already got a lawyer. Do you think that
what's going to happen is so we'll have a few
cases like this, there'll be appealed, it'll just get caught
up in appeals, and maybe the Supreme Court won't even
(16:58):
take the case.
Speaker 5 (17:00):
Yeah. I don't think the Supreme Court has any interest
in particular in revisiting Texas versus Johnson. It is, as
I said before, one of the central precedents in the
entire First Amendment. Lexicon has been cited and cited and
cited by the Supreme Court, you know, in many many
other cases, because it stands for such a core proposition
(17:24):
of the First Amendment. And so I don't think these
kind of marginal cases like this one where someone violated
a neutral rule. But there's an argument that he was
selectively prosecuted for that violation. Are going to present the
question of whether the court should overturn Texas versus Johnson
in the first place, And were that question presented, I
(17:46):
would be shocked if this Supreme Court agreed as.
Speaker 1 (17:50):
Far as any possible penalty for any possible charges, Trump said,
you get one year in jail, no early exits, know nothing.
Do you know where that one year came from? Because
I don't even think it's in the executive order.
Speaker 4 (18:05):
No.
Speaker 5 (18:05):
He has a big mouth, very little understanding of the law,
but no legal authority to dictate what penalties people pay
for violating legitimate laws, and no authority whatsoever to say
that people should pay penalties for violating illegitimate laws, like
laws that ban flag burning.
Speaker 1 (18:26):
There's also a provision that threatens to deny or revoke
visas and other immigration benefits to non citizens who burn flags.
They're expanding every day, it seems the ways to revoke visas.
Does that have any basis in law?
Speaker 5 (18:45):
It has no basis in law for two reasons. First
of all, the First Amendment protects all of us within
the United States. It protects citizens and non citizens alike.
It protects the freedom of speech regardless of who the
speaker is, protects corporations, and so it also protects foreign nationals.
And so if there were an immigration statute that said
(19:07):
you could be deported for burning an American flag, it
would be unconstitutional for the very same reasons that the
Federal Flag Protection Act was deemed unconstitutional. But in addition,
there are no such laws. There is no immigration statute
that says we can deny of visa or port someone
because they burn an American flag. So there's no statutory
(19:30):
authority to do so, and there's no constitutional authority to
do so. President Trump is seeking to chill the free
exercise of First Amendment rights by citizens and non citizens
alike through this executive order, but he doesn't have the
authority to actually follow through on the threat.
Speaker 1 (19:48):
David, have there been cases where in recent history since
the Supreme Court's rulings where people were prosecuted for burning flags.
Speaker 5 (19:57):
The decisions in Johnson and Aikman essentially put the issue
to rest. There was one instant actually involving Gregory Johnson,
who burned a flag in Cleveland, I believe, outside of
another convention. I can't remember which party's Convention, it was,
and he was prosecuted again under a neutral law that
(20:18):
banned burning of anything in public. His case was ultimately dismissed.
But no, there are not flag burning prosecutions because it
is so clear that flag burning is protected. And indeed,
you know, to some degree, the fact that flag burning
is protected, I think has reduced people's sort of incentive
(20:40):
to burn flags in the first place. I remember when
the question of whether there ought to be a constitutional
amendment that sort of excised flag burning from the first
Amendment was on the table in New York, a New
York state legislature voted against amending the constitution, and he said,
you know, if I want my kids to stick broccoli
up their notes, the best way I can, you know,
(21:02):
effectuate that is by saying, whatever you do, don't stick
broccoli up your notes. So, you know, once it became
clear that the state has no authority to criminalize flag burning,
you know, sort of flag burning kind of lost some
of the oomph that it had, and so you just
haven't seen that much flag burning since the Supreme Court's decision.
(21:24):
And I think what you saw, you know, the day
that President Trump issued his order is that the new
York legislator was right. It's only because Trump issued that
executive order that the veteran then went and burned the
flag because he was angered that the president was seeking
to tell him he couldn't do something that he thought
he had the right to do.
Speaker 1 (21:46):
Interesting to see if anything happens or if those charges
just end up being dismissed. Thanks so much, David. That's
Professor David Call of Georgetown Law. And that's it for
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
(22:06):
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso, and
you're listening to Bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
And what the penalty is going to be. If you
burn a flag, you get one year in jail, no
early exits, no nothing. You get one year in jail.
If you're burn a flag, you get And what it
does is insight to write it.
Speaker 1 (00:23):
President Trump signed an executive order on Monday directing the
US Attorney General to prosecute people for burning the American flag.
But flag burning is protected under the First Amendment under
well settled Supreme Court precedence. In fact, none other than
the late Justice antonin Scalia, a conservative icon, was part
(00:46):
of the majority in the nineteen eighty nine case that
established that the Constitution protects burning the flag as a
form of symbolic speech.
Speaker 3 (00:56):
Yeah, if I were king, I would not allow people
to go about bernie the American flag. However, we have
a First Amendment which says that the right of free
speech shall not be abridged, and it is addressed in
particular to speech critical of the government. I mean that
was the main kind of speech that tyrants would seek
(01:17):
to suppress. Burning the flag is a form of expression.
Speech doesn't just mean written words or oral words. It
could be semaphore. Burning a flag is a symbol that
expresses an idea. I hate the government, the government is
unjust whatever.
Speaker 1 (01:35):
Trump call the justices who made that decision a quote
very sad court. And the order directs the Attorney General
to pursue litigation to challenge that nineteen eighty nine President.
Speaker 2 (01:48):
You get one year in jail, and it goes on
your record and you will see flag burning sapping immediately.
Speaker 1 (01:55):
But just two hours later, a combat veteran burned an
American flag across the street from the White House to
protest the executive order targeting flagburning.
Speaker 4 (02:07):
I'm burning it flag at the progress that illegal statics, President,
that's in that house.
Speaker 1 (02:15):
My guest is David Cole, a professor at Georgetown Law.
He represented the men who burned the flags in the
two leading Supreme Court cases. David, there's a long history
in this country of desecrating or burning the flag as
a form of political protest. That goes back to the
Civil War. But states and even Congress have passed laws
(02:37):
to prevent flag burning. Tell us about the Seminole case
the Supreme Court decided in nineteen eighty nine, where you
represented Gregory Lee Johnson.
Speaker 5 (02:47):
Sure so. Gregory Johnson burned an American flag in Dallas, Texas,
in a protest outside of the Republican National Convention that year,
and was skeetered under a Texas statute that made it
a crime to burn the flag in a way that
would deeply offend onlookers. He was convicted in the trial court.
(03:11):
That conviction was overturned by the highest court in Texas,
but Texas took the case up to the Supreme Court,
and the Supreme Court in Texas versus Johnson, ruled that
the government may not criminalize expression through the burning of
a flag simply because people find that message offensive.
Speaker 1 (03:33):
It was a five to four decision, but it didn't
divide the court down ideological lines. In fact, conservative icon
Justice Antonin Scalia was in the majority. Why do you
think it didn't go down ideological lines?
Speaker 5 (03:47):
So that's a great question. We won the case with
the votes of two Republican appointees, Justice Kennedy and Justice Scalia.
Both of them, I think, you know, over time, showed
themselves to be committed to the First Amendment. Justice Stevens
also a committed First Amendment to Justice dissented, I think
in his case, it came down to the fact that
(04:08):
he was a veteran. He was a veteran of World
War Two. He clearly was deeply offended by the very
practice of burning the flag and therefore dissented. But over time,
I think, you know, if you look back at the
cases that preceded Texas serviss Johnson, many justices, including liberal justices,
(04:31):
expressed some reservation about whether or not flag burning should
be protected by the First Amendment. So it's not something
that has divided the country along partisan lines, and will you.
Speaker 1 (04:42):
Explain the thinking of the justices in the majority and
in the discent.
Speaker 5 (04:47):
So the majority held that the justification for throwing someone
in jail for burning the flag is that the message
sent by engaging in that conduct is offensive. And the
court held that under the First Amendment, the government has
to maintain neutrality in the field of expression. Can't punish
(05:13):
speech simply because it or a majority of people find
a particular message to be offensive. Once you go down
that road, virtually anything can be prohibited by the government
because one man's offense is another man's truth. The dissent argued, well,
this is really not so essential a form of expression.
(05:36):
Chief Justice Rank was called flag burning quote an inarticulate grunt,
And there's a very powerful interest in preserving the unity
that the symbol expresses, and therefore states should be permitted
to prescribe how people can use the flag. They can
waive it, but they can't burn it.
Speaker 1 (05:58):
One year later, Congress passed a law criminalizing burning the
American flag, and in another case where you represented the defendant,
the Supreme Court struck down that law right.
Speaker 5 (06:10):
This case was called the United States versus Iikmen, and
it basically stemmed from Congress's response to Texas versus Johnson.
The Johnson decision came down, as controversial decisions often do,
right before the fourth of July. Congress decided in its
wisdom to stay in session rather than go out for
the fourth of July recess, so that virtually every member
(06:33):
of Congress, democratic and Republican alli could get up at
the lectern and denounce the Supreme Court for this unpatriotic decision.
And then Congress proceeded in the following year to amend
federal law to prohibit flag burning and purportedly to avoid
the particular problems that the Texas statute that the Court
(06:56):
had struck down in Texas versus Johnson had So you
had Democrats and Republicans alike voting in favor of the
Federal Flag Protection Act and maintaining that notwithstanding with the
Supreme Court said in Diagnos missus Johnson, it should be
a crime to burn the American flag. And that law
(07:16):
was violated the day it took effect in two cases,
and I was counsel for the defendants in both of
those cases. That went right up to the Supreme Court
the following year, and the Court essentially said, we meant
what we said a year ago. The only justification for
prohibiting the burning of an American flag is the message
(07:39):
that it sends. That that message is deemed defensive by people.
The fact that speech is deemed defensive by people is
not a justification for throwing people in jail. It's, in fact,
a justification for protecting that speech. And so the Court
struck down the Federal Flag Protection Act on the same
five to four vote.
Speaker 1 (08:01):
So President Trump is also with this executive order calling
for Attorney General Pam Bondy to pursue litigation to challenge
the Supreme Court's ruling. In nineteen eighty nine, this Supreme
Court is very different from that Supreme Court. Do you
think that they would still uphold the president.
Speaker 5 (08:21):
Yes, this court is different from the court from nineteen
eighty nine to nineteen ninety. But this is, if anything,
an even stronger pro First Amendment court, and Texas versus
Johnson is not just the kind of one off. It
is cited again and again and again for this basic premise,
probably the most fundamental premise of pre speech law, which
(08:44):
is the fact that speech offends somebody is not a
justification for the government to throw the speaker in jail.
And that's ultimately what punishing flag burners is about. It's
about throwing them in jail because we would be, you know,
very pleased if they waive the flag. We are very
(09:04):
upset if they burn the flag. But either way, you
are using the flag to express a message, and the
government is not allowed to tell us what messages we
can and cannot express through symbolic speech or otherwise.
Speaker 1 (09:20):
Now, Trump's executive order doesn't direct the Attorney General to
prosecute those who burn flags for the flag burning itself,
but it says the Justice Department should bring cases quote
against acts of American flag desecration that violate applicable content
neutral laws while causing harm unrelated to expression, consistent with
(09:43):
the First Amendment. So the cases are going to be
limited to those where there's a violation of other laws.
Speaker 5 (09:52):
So this executive order is, I suppose, as befitting something
that is ultimately about symbols, almost entirely symbolic, because it acknowledges,
as it must, that the Supreme Court has decisively ruled
that you can't punish someone for burning a flag. And
what it does it says, well, there may be some
(10:12):
circumstances in which one could where the reason you're engaged
in the prosecution is not the burning of the flag
per se, but some other interest altogether. So, for example,
many towns and cities prohibit burning of anything in public
(10:34):
without a permit. You can't burn leaves, you can't burn
wood in public without a permit. That law can be
applied to the burning of an American flag because the
law is not about speech, it's not about what burning
a flag communicates. It's an environmental law or fire safety
law that is neutral as to speech. And it's long
(10:55):
been the case that that kind of law. In fact,
the Supreme Court is said that kind of law would
be perfectly permissible. It is very rare that that is
sphasis for a flag dessecration prosecution. However, and the other
example that the Trump puts forth these as well, if
somebody burned a flag in such a way as it
constituted incitement to imminent wawless action or fighting words, those
(11:20):
are not protected by the First Amendment. Even pure speech,
if it constitutes incitement to emminent wallless action or fighting words,
is not protected by the First Amendment. So if flag
burning fell into those very very narrow categories, you could
prosecute it. That's true, but sort of trivial and largely irrelevant,
(11:41):
because people burn flags not to engage in fighting words,
not to incite some imminent lawless action, but to protest
what the American government is doing. That's why they burn flags,
and that is exactly why flag dessecration laws were inactive,
and that the Supreme Court is held is an impermissible
(12:04):
justification for targeting any form of speech. So, yeah, if
you come up with a case, and I've not seen
one in my entire lifetime where someone burns a flag
in order to send a signal to some group that
is steeled to action to engage in illegal conduct. Well, sure,
just as you could criminalize that person from raising his
(12:28):
hand to incite that lawless action, you could penalize burning
a flag if it's being used for that purpose. But
it's really a null set And so I think at
the end of the day, Trump's executive order is itself
a kind of a nullity. It's a political act. It's
not going to have any real world effects, and it's
(12:50):
essentially theater engaged in by the President because it's good politics.
It's easy to be on the side of condemning the
burning of the American flag. That's why Democrats and Republicans
have done that for a long time. That's why forty
nine state legislatures voted to amend the Constitution after Texas versus.
(13:11):
Johnson and the United States versus Aikman, and the amendment
effort only failed by a few votes in the Senate.
Because the easy political act is to condemn these kinds
of expressions. The hard thing, the courageous thing, is to
protect them, even if we find them, and even because
we find them detestable and offensive.
Speaker 1 (13:32):
Coming up next, I'll continue this conversation with Georgetown law
professor David Cole did Trump just give the veteran who
burned the American flag outside the White House a defense?
This is Bloomberg. President Donald Trump signed an executive order
on Monday requiring the Justice Department to investigate and prosecute
(13:56):
people for burning the American flag, something the Supreme Court
has ruled is legitimate political expression protected by the Constitution.
But within two hours of Trump signing the executive order,
Jay Carrey, a US Army veteran, burned an American flag
outside the White House in protest.
Speaker 4 (14:16):
I'm burning this flag as the progress that illegal fact
that president that sits in that house.
Speaker 1 (14:24):
Carrie told Fox News he's ready to fight any federal
charges in court.
Speaker 6 (14:29):
It wasn't a matter of a disrespecting the flag. I'm
a veteran. I fought under that flag with that fight
for that flag is a matter of protesting against what
the President was putting out in an executive order because
he feels he can do anything that he wants, and
that's just not the case.
Speaker 1 (14:43):
I've been talking to Professor David Cole of Georgetown Law,
who represented the men who burned flags in the two
leading Supreme Court cases. A combat veteran burned a flag
outside the White House on Monday in protest of Trump's
executive order targeting flag burning. He was detained by Secret
(15:03):
Service for igniting an object, then turned over the US
Park Police and arrested. He was issued too citations, not
for burning the flag, but for setting a fire in
an unsecured place and for damaging park property. Does he
have a defense that he's being selectively prosecuted or is
that a straightforward citation?
Speaker 5 (15:26):
So I think in the absence of Trump's executive order,
it would be a straightforward citation. That is, of course,
the federal government is permitted to ban burning things on
federal property, and it can ban burning flags along with
burning leaves or anything else on federal property, and that
wouldn't raise a serious First Amendment objection even if someone
(15:48):
burned a flag for protest. But now that Trump has
issued this executive order and basically announced I'm as the
President United States, I am directing the Justice Department to
prosecute flagburners. Why because flagburning expresses an offensive message that
essentially gives this protester evidence of selective prosecution. He can
(16:13):
introduce as exhibit A in his defense the fact that
the President announced the day before he was arrested that
the government would target people who burn flags using other laws,
but doing so because the President disapproves of the message
that is sent. And so he now has a defense
(16:34):
that he wouldn't have had had the President not issued
that executive.
Speaker 1 (16:38):
Order and the Army veteran Carrie said he wants the
DCUs attorney to bring federal charges. He welcomes the challenge,
and he's already got a lawyer. Do you think that
what's going to happen is so we'll have a few
cases like this, there'll be appealed, it'll just get caught
up in appeals, and maybe the Supreme Court won't even
(16:58):
take the case.
Speaker 5 (17:00):
Yeah. I don't think the Supreme Court has any interest
in particular in revisiting Texas versus Johnson. It is, as
I said before, one of the central precedents in the
entire First Amendment. Lexicon has been cited and cited and
cited by the Supreme Court, you know, in many many
other cases, because it stands for such a core proposition
(17:24):
of the First Amendment. And so I don't think these
kind of marginal cases like this one where someone violated
a neutral rule. But there's an argument that he was
selectively prosecuted for that violation. Are going to present the
question of whether the court should overturn Texas versus Johnson
in the first place, And were that question presented, I
(17:46):
would be shocked if this Supreme Court agreed as.
Speaker 1 (17:50):
Far as any possible penalty for any possible charges, Trump said,
you get one year in jail, no early exits, know nothing.
Do you know where that one year came from? Because
I don't even think it's in the executive order.
Speaker 4 (18:05):
No.
Speaker 5 (18:05):
He has a big mouth, very little understanding of the law,
but no legal authority to dictate what penalties people pay
for violating legitimate laws, and no authority whatsoever to say
that people should pay penalties for violating illegitimate laws, like
laws that ban flag burning.
Speaker 1 (18:26):
There's also a provision that threatens to deny or revoke
visas and other immigration benefits to non citizens who burn flags.
They're expanding every day, it seems the ways to revoke visas.
Does that have any basis in law?
Speaker 5 (18:45):
It has no basis in law for two reasons. First
of all, the First Amendment protects all of us within
the United States. It protects citizens and non citizens alike.
It protects the freedom of speech regardless of who the
speaker is, protects corporations, and so it also protects foreign nationals.
And so if there were an immigration statute that said
(19:07):
you could be deported for burning an American flag, it
would be unconstitutional for the very same reasons that the
Federal Flag Protection Act was deemed unconstitutional. But in addition,
there are no such laws. There is no immigration statute
that says we can deny of visa or port someone
because they burn an American flag. So there's no statutory
(19:30):
authority to do so, and there's no constitutional authority to
do so. President Trump is seeking to chill the free
exercise of First Amendment rights by citizens and non citizens
alike through this executive order, but he doesn't have the
authority to actually follow through on the threat.
Speaker 1 (19:48):
David, have there been cases where in recent history since
the Supreme Court's rulings where people were prosecuted for burning flags.
Speaker 5 (19:57):
The decisions in Johnson and Aikman essentially put the issue
to rest. There was one instant actually involving Gregory Johnson,
who burned a flag in Cleveland, I believe, outside of
another convention. I can't remember which party's Convention, it was,
and he was prosecuted again under a neutral law that
(20:18):
banned burning of anything in public. His case was ultimately dismissed.
But no, there are not flag burning prosecutions because it
is so clear that flag burning is protected. And indeed,
you know, to some degree, the fact that flag burning
is protected, I think has reduced people's sort of incentive
(20:40):
to burn flags in the first place. I remember when
the question of whether there ought to be a constitutional
amendment that sort of excised flag burning from the first
Amendment was on the table in New York, a New
York state legislature voted against amending the constitution, and he said,
you know, if I want my kids to stick broccoli
up their notes, the best way I can, you know,
(21:02):
effectuate that is by saying, whatever you do, don't stick
broccoli up your notes. So, you know, once it became
clear that the state has no authority to criminalize flag burning,
you know, sort of flag burning kind of lost some
of the oomph that it had, and so you just
haven't seen that much flag burning since the Supreme Court's decision.
(21:24):
And I think what you saw, you know, the day
that President Trump issued his order is that the new
York legislator was right. It's only because Trump issued that
executive order that the veteran then went and burned the
flag because he was angered that the president was seeking
to tell him he couldn't do something that he thought
he had the right to do.
Speaker 1 (21:46):
Interesting to see if anything happens or if those charges
just end up being dismissed. Thanks so much, David. That's
Professor David Call of Georgetown Law. And that's it for
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
(22:06):
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso, and
you're listening to Bloomberg
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