Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
So we talked a lot about this.
Speaker 2 (00:01):
Yesterday, President Trump signing an executive order targeting flag burners
and imposing a one year jail penalty for the act.
I saw him sitting behind the desk in the Oval
office saying, it's not ten years, it's not one month.
Speaker 1 (00:16):
It's one year if you're burning a flag.
Speaker 2 (00:20):
And so I guess the Supreme Court ruling in nineteen
eighty nine flag burning is constitutionally protected speech.
Speaker 1 (00:27):
I don't know.
Speaker 2 (00:28):
I'm a bit This is a head scratcher for me,
what's going on right now.
Speaker 1 (00:32):
And I don't know where you're at on this.
Speaker 2 (00:35):
You know, I'd like to be wishy washy and go well,
I'd like to pick and choose exactly what I think
the First Amendment applies to. But then that makes me
a Democrat if I start doing that. My point is,
I'm not sure exactly. I always thought it was protected,
like it or love it or hate it, or whatever
you are wherever you come down on burning the American flag.
Speaker 1 (00:55):
I thought it was protected.
Speaker 2 (00:57):
But so I reached out to Columbus Defense to any
Brad Koffl and he's hostuffed for the Defense, and he's
a very smart guy, much smarter than I, and so
he he's he has agreed to jump on the air
with us today.
Speaker 1 (01:10):
Brad, welcome to the show. Thank you for coming on, brother.
Speaker 3 (01:13):
I always glad to be on with you guys, with
you guys and your listeners.
Speaker 1 (01:18):
Yeah.
Speaker 2 (01:18):
Man, the so I know you were saying something like
to the effect of you were recording something for a
podcast about this very subject, because I think there are
a lot of people scratching their heads every you know,
people walking around with big question marks over the top
of their head, if you will, you know, regarding this.
And look, I make no bones about I am a
(01:39):
Trump supporter. I pulled the lever for him or whatever.
But the first thing I thought when all of this
started was was like.
Speaker 1 (01:45):
Hey, is he able to do this? Like? What? What?
What is going on with this? So I guess give
me what you got on this?
Speaker 3 (01:55):
All right? Well, this case, the case that controls is
from nineteen nine. I started law school in nineteen ninety
and when we got to Texas c. Johnson, I was offended.
I think most of the class was offended that our
Supreme Court and a five to four decision five to
(02:16):
four that flag burning is constitutionally protected. First Amendment speech,
and there have to be some lines where it something
is inherently offensive and it is any pro social aspect
(02:40):
is outweighed by the anti social aspect of conduct. And
for some reason the Supreme Court and five to four
decision said, even though it's offensive, and it's probably offensive
to just about everybody, it's it's protected speech. Meanwhile, there
(03:02):
are there are hate crimes that have built up over
the in the United States over the years that if
you desecrate a mosque by spray painting a slur, that's
a hate crime and you're going to go to prison.
I know because I've had a client who did that
(03:24):
and he didn't go to prison, but he went to jail.
We tried to argue that it was protected speech. The
problem is he's spray painted on the mosque, which is
their property. What Trump's doing is saying, look, if your
active flag burning results in another crime, then you're going
(03:47):
to do a year in prison. So if the city
of if DC has an arson law that says it
is illegal to burn a flag because you know it
carried you know, if there's emissions, or it's chemicals, or
how about it's likely to incite a riot, then that's offensive.
(04:10):
If something is likely to incite a riot, then it
is offensive. The First Amendment does not protect speech or
conduct that is likely to incite a riot. I don't
know if something is so offensive, such as flag burning,
(04:30):
it will incite keep other people to act it will
It will take somebody like myself and probably like you
and probably nine out of ten listeners to your show
that are going to confront that person or people that
are burning an American flag. I can guarantee you if
I saw someone burning a flag, we're going to have
(04:52):
an issue, you know, of some kind. I think the
reason Trump's doing this is administrations doing this. These guys
they've had three and a half years to build out
their wish list, and on the wish list apparently after
John Bolton is we want to make it unconstitutional during
the flag. So Friday with John Bolton and Monday is
(05:15):
an EO that's going to be challenged. It'll go to
the Supreme Court, and I think the Supreme Court will
reverse Johnson. And because Johnson was so it was just
five to four. Now we've got justices and who are
going to look at this from a more of a
conservative advantage point and We now realize that flag burning
(05:40):
is a form. It's a political speech, for sure, but
it is it is now being used a lot to
incite Americans to It jumps over offensive, it's beyond offensive.
It jumps up to and insightful. And that's where speech
(06:01):
gets into trouble. Let me give you a parallel. What
if I told you it is not unconstitutional to burn
across the light across on fire, and you put that
in front of the house of African American family.
Speaker 1 (06:21):
How's that?
Speaker 3 (06:22):
How's that legal? How's that First Amendment? How's that just
merely political speech? We know it's done with the intent
to intimidate, and then it loses its First Amendment protection. Well,
you burn a flag in front of my house, it's
going to be very similar to burning across in front
(06:45):
of a house of pretty much anybody. I would be
horribly intimidating, even you know, whether you're white, brown, black,
burning across, burning a flag, desecration of religious texts, desecration
of religious symbols, mutilation of human graves, those all are offensive.
(07:08):
But we need the Supreme Court to check in with
reality and realize the purpose behind doing this is not
just simply to communicate political expression. It is now being
done to intimidate, to insight. And that's where the Supreme Court.
I'm going to predict sometime in twenty late twenty six,
(07:31):
the Supreme Court is going to come down five to
four reversing Johnson.
Speaker 1 (07:36):
Wow.
Speaker 2 (07:37):
Wow, that would be absolutely unbelievable, wouldn't it if this happens.
I mean, and look, I'm I would be all for that,
them reversing this. But then I don't know, do you
step in it deeper? Because you're going, all right, then
you know, you just what you do. And I guess
therein lies why you know, each party tries to get
(08:00):
their quote unquote sides of the justices that see it
their way on the Supreme Court and start reversing things
that they don't like throughout history.
Speaker 1 (08:10):
I guess as well.
Speaker 2 (08:11):
And you know this Army veteran who said he's a
twenty plus year veteran. You saw that story. I'm sure
this morning that he burned that. But I think they're
using kind of what is it Basically he's on you know,
it's federal property, and you're unable you're not so you know,
you can't burn anything on federal property.
Speaker 1 (08:33):
Something along those lines. Does that sound right?
Speaker 3 (08:37):
I don't know. I okay, I've had I've had my
TVs on off, you know, keeping an eye on things,
But I I didn't look into a deeper dive.
Speaker 1 (08:47):
On that, right.
Speaker 3 (08:48):
But the bottom line is, desecration of a nation flag
is a uniquely offensive and provocative act. It should not
enjoy First and Mendment privilege. I don't think any one
of our founding fathers would ever believe that burning the
flag of the of the United States enjoys First Amendment protection.
(09:14):
There's just some things. It's so uniquely offensive, it's so
uniquely provocative, no different than burning across that should be
a criminal conduct. It's just it's like the Nazi symbol.
It's so uniquely offensive. It's so uniquely provocative. If you
(09:37):
just merely display it on the back of your of yours,
on the back of your prius, just to make it exaggerated,
if you had the Nazi symbol on the back of
your of your of your car, you know, maybe that's well,
currently that's First Amen protection. But if the context of
(10:02):
taking a Nazi cross and like the parade, one of
the reasons I wanted to go into criminal and I
like law is. There was a case from years ago
in Skokie, Illinois, which was the home of a lot
of Jews and Holocaust survivors, and the Nazis wanted to
(10:22):
parade through the streets of Skokie with the Nazi flag,
and the Supreme Court said, you can do that. And
it was actually a lawyer who was a Jewish lawyer
from Chicago that defended them and he said, look, they
have a constitutionally protected right to do this. When I
(10:43):
was twenty three twenty four in law school, I thought, damn,
that's admirable.
Speaker 1 (10:49):
I like that.
Speaker 3 (10:50):
At fifty seven, I'm going no, that's jacked up. You
shouldn't be allowed. That's uniquely offensive and there has to
be lines drawn.
Speaker 4 (11:01):
As I just said, you know, do you make the
whole even bigger? Though, although a reversal of Johnson might
be a feel good thing, are you making the whole bigger?
Because at this point we are left to litigate intent.
We are we are at the point where okay, it's
it's if if you cannot burn the American flag, it
(11:21):
may feel good and sound good and so forth, what
else then is going to be prohibited. It's a very
very big hole. And I you know, I'm not in
favor of flag burning. I told Mark yesterday. Look, until
if I go in the middle of the street and
burn the US flag, it's freedom of speech. If I
burn a gay flag, then it's it's a hate crime
(11:42):
and I'm going to jail. So until it's uniform in
what is outrageous.
Speaker 3 (11:47):
I don't think you can. I think you can burn
a pride flag. I don't think that that's First Amendment.
Speaker 4 (11:55):
You don't.
Speaker 3 (11:55):
You don't as long as it's your pride flag and
not their pride flag.
Speaker 4 (11:58):
You don't think that there would be what's ethnic intimidating,
not ethic, But what's the word. I'm going to intimidation
charges against me for doing that.
Speaker 3 (12:08):
If it is uniquely and I'm making law here, I
mean literally, I'm making I'm I'm saying what I would
love the Supreme Court to do. Take it away from intent.
And this is a symbol that is uniquely important to
(12:28):
a large chunk of our society. And we want our
Supreme Court to put a ring of protection around the Bible,
the Kuran, the Tora, the flag in the United States
of America. If you want to put the pride flag
in there. Put the Pride flag in there, and it
can go up on a case by case basis. Is
this a symbol that shall not be desecrated. It is
(12:52):
perfectly reasonable for the American people to demand that our
lawmakers listen to us and our Supreme Court to listen
to us and say, we find we want you to
focus on this is a uniquely offensive, uniquely important object,
(13:14):
and there is no valid purpose to desecrate it that
can be anything other than offensive. Like child pornography, it's
inherently offensive, it's inherently illegal. There are very few exceptions
to possession of child pornography. A cop, a detective, prosecutors
(13:37):
and judge. That's about it. Maybe Duri, I can't even
possess this stuff. The Supreme Court has already made it
clear there are certain things that enjoy certain protections. And
why wouldn't we make the nation's flag and the Pride
flag and the three major religions there sacred texts. You
(14:02):
cannot desecrate those is a mandatory. You're in prison at
stiff but there should be some punishment for it.
Speaker 4 (14:11):
So then, under that same line of thinking, that the
Jews in Scochie, Illinois were burning Nazi flags. What would
be the result there? Would we protect that Nazi flag?
Speaker 1 (14:21):
That's the Nazi.
Speaker 3 (14:22):
Nazi flag to the American people is not a sacred text,
it's not a sacred symbol. Burn away instead of looking
at the instead of looking at the context or the
conduct of the person, we are now looking at what
this thing represents. And they are just some things that
(14:45):
I think the American people, I think this is a
ninety ten issue. Guys, this is probably this is probably
a ninety ten issue, probably right, And the Supreme Court
can absolutely take into consideration the will of the people
and determining, you know what, we are going to create
a new era of exceptions to the First Amendment. And
(15:07):
we're calling them sacred symbols.
Speaker 1 (15:10):
That's that's incredible. And we'll see if it plays out
that way.
Speaker 2 (15:16):
He so stuffed for the defense and Columbus defense attorney
Brad Kaufel. Brad incredibly insightful, and I really appreciate you
jumping on with us today.
Speaker 1 (15:27):
And I'll be honest, I was.
Speaker 2 (15:29):
I'm listening to you like I'm sitting here, I'm glad
there aren't flies flying around. I'm like blown away by
by all of this. I think it's incredibly fascinating the
way this could all play.
Speaker 3 (15:40):
Near and dear. This should be near and dear to
every listener's heart.
Speaker 2 (15:43):
Yep, yep, no question about it. Brad, Thank you very much.
Appreciate your brother.
Speaker 1 (15:47):
All right, guys, take care all right,
So we talked a lot about this.
Speaker 2 (00:01):
Yesterday, President Trump signing an executive order targeting flag burners
and imposing a one year jail penalty for the act.
I saw him sitting behind the desk in the Oval
office saying, it's not ten years, it's not one month.
Speaker 1 (00:16):
It's one year if you're burning a flag.
Speaker 2 (00:20):
And so I guess the Supreme Court ruling in nineteen
eighty nine flag burning is constitutionally protected speech.
Speaker 1 (00:27):
I don't know.
Speaker 2 (00:28):
I'm a bit This is a head scratcher for me,
what's going on right now.
Speaker 1 (00:32):
And I don't know where you're at on this.
Speaker 2 (00:35):
You know, I'd like to be wishy washy and go well,
I'd like to pick and choose exactly what I think
the First Amendment applies to. But then that makes me
a Democrat if I start doing that. My point is,
I'm not sure exactly. I always thought it was protected,
like it or love it or hate it, or whatever
you are wherever you come down on burning the American flag.
Speaker 1 (00:55):
I thought it was protected.
Speaker 2 (00:57):
But so I reached out to Columbus Defense to any
Brad Koffl and he's hostuffed for the Defense, and he's
a very smart guy, much smarter than I, and so
he he's he has agreed to jump on the air
with us today.
Speaker 1 (01:10):
Brad, welcome to the show. Thank you for coming on, brother.
Speaker 3 (01:13):
I always glad to be on with you guys, with
you guys and your listeners.
Speaker 1 (01:18):
Yeah.
Speaker 2 (01:18):
Man, the so I know you were saying something like
to the effect of you were recording something for a
podcast about this very subject, because I think there are
a lot of people scratching their heads every you know,
people walking around with big question marks over the top
of their head, if you will, you know, regarding this.
And look, I make no bones about I am a
(01:39):
Trump supporter. I pulled the lever for him or whatever.
But the first thing I thought when all of this
started was was like.
Speaker 1 (01:45):
Hey, is he able to do this? Like? What? What?
What is going on with this? So I guess give
me what you got on this?
Speaker 3 (01:55):
All right? Well, this case, the case that controls is
from nineteen nine. I started law school in nineteen ninety
and when we got to Texas c. Johnson, I was offended.
I think most of the class was offended that our
Supreme Court and a five to four decision five to
(02:16):
four that flag burning is constitutionally protected. First Amendment speech,
and there have to be some lines where it something
is inherently offensive and it is any pro social aspect
(02:40):
is outweighed by the anti social aspect of conduct. And
for some reason the Supreme Court and five to four
decision said, even though it's offensive, and it's probably offensive
to just about everybody, it's it's protected speech. Meanwhile, there
(03:02):
are there are hate crimes that have built up over
the in the United States over the years that if
you desecrate a mosque by spray painting a slur, that's
a hate crime and you're going to go to prison.
I know because I've had a client who did that
(03:24):
and he didn't go to prison, but he went to jail.
We tried to argue that it was protected speech. The
problem is he's spray painted on the mosque, which is
their property. What Trump's doing is saying, look, if your
active flag burning results in another crime, then you're going
(03:47):
to do a year in prison. So if the city
of if DC has an arson law that says it
is illegal to burn a flag because you know it
carried you know, if there's emissions, or it's chemicals, or
how about it's likely to incite a riot, then that's offensive.
(04:10):
If something is likely to incite a riot, then it
is offensive. The First Amendment does not protect speech or
conduct that is likely to incite a riot. I don't
know if something is so offensive, such as flag burning,
(04:30):
it will incite keep other people to act it will
It will take somebody like myself and probably like you
and probably nine out of ten listeners to your show
that are going to confront that person or people that
are burning an American flag. I can guarantee you if
I saw someone burning a flag, we're going to have
(04:52):
an issue, you know, of some kind. I think the
reason Trump's doing this is administrations doing this. These guys
they've had three and a half years to build out
their wish list, and on the wish list apparently after
John Bolton is we want to make it unconstitutional during
the flag. So Friday with John Bolton and Monday is
(05:15):
an EO that's going to be challenged. It'll go to
the Supreme Court, and I think the Supreme Court will
reverse Johnson. And because Johnson was so it was just
five to four. Now we've got justices and who are
going to look at this from a more of a
conservative advantage point and We now realize that flag burning
(05:40):
is a form. It's a political speech, for sure, but
it is it is now being used a lot to
incite Americans to It jumps over offensive, it's beyond offensive.
It jumps up to and insightful. And that's where speech
(06:01):
gets into trouble. Let me give you a parallel. What
if I told you it is not unconstitutional to burn
across the light across on fire, and you put that
in front of the house of African American family.
Speaker 1 (06:21):
How's that?
Speaker 3 (06:22):
How's that legal? How's that First Amendment? How's that just
merely political speech? We know it's done with the intent
to intimidate, and then it loses its First Amendment protection. Well,
you burn a flag in front of my house, it's
going to be very similar to burning across in front
(06:45):
of a house of pretty much anybody. I would be
horribly intimidating, even you know, whether you're white, brown, black,
burning across, burning a flag, desecration of religious texts, desecration
of religious symbols, mutilation of human graves, those all are offensive.
(07:08):
But we need the Supreme Court to check in with
reality and realize the purpose behind doing this is not
just simply to communicate political expression. It is now being
done to intimidate, to insight. And that's where the Supreme Court.
I'm going to predict sometime in twenty late twenty six,
(07:31):
the Supreme Court is going to come down five to
four reversing Johnson.
Speaker 1 (07:36):
Wow.
Speaker 2 (07:37):
Wow, that would be absolutely unbelievable, wouldn't it if this happens.
I mean, and look, I'm I would be all for that,
them reversing this. But then I don't know, do you
step in it deeper? Because you're going, all right, then
you know, you just what you do. And I guess
therein lies why you know, each party tries to get
(08:00):
their quote unquote sides of the justices that see it
their way on the Supreme Court and start reversing things
that they don't like throughout history.
Speaker 1 (08:10):
I guess as well.
Speaker 2 (08:11):
And you know this Army veteran who said he's a
twenty plus year veteran. You saw that story. I'm sure
this morning that he burned that. But I think they're
using kind of what is it Basically he's on you know,
it's federal property, and you're unable you're not so you know,
you can't burn anything on federal property.
Speaker 1 (08:33):
Something along those lines. Does that sound right?
Speaker 3 (08:37):
I don't know. I okay, I've had I've had my
TVs on off, you know, keeping an eye on things,
But I I didn't look into a deeper dive.
Speaker 1 (08:47):
On that, right.
Speaker 3 (08:48):
But the bottom line is, desecration of a nation flag
is a uniquely offensive and provocative act. It should not
enjoy First and Mendment privilege. I don't think any one
of our founding fathers would ever believe that burning the
flag of the of the United States enjoys First Amendment protection.
(09:14):
There's just some things. It's so uniquely offensive, it's so
uniquely provocative, no different than burning across that should be
a criminal conduct. It's just it's like the Nazi symbol.
It's so uniquely offensive. It's so uniquely provocative. If you
(09:37):
just merely display it on the back of your of yours,
on the back of your prius, just to make it exaggerated,
if you had the Nazi symbol on the back of
your of your of your car, you know, maybe that's well,
currently that's First Amen protection. But if the context of
(10:02):
taking a Nazi cross and like the parade, one of
the reasons I wanted to go into criminal and I
like law is. There was a case from years ago
in Skokie, Illinois, which was the home of a lot
of Jews and Holocaust survivors, and the Nazis wanted to
(10:22):
parade through the streets of Skokie with the Nazi flag,
and the Supreme Court said, you can do that. And
it was actually a lawyer who was a Jewish lawyer
from Chicago that defended them and he said, look, they
have a constitutionally protected right to do this. When I
(10:43):
was twenty three twenty four in law school, I thought, damn,
that's admirable.
Speaker 1 (10:49):
I like that.
Speaker 3 (10:50):
At fifty seven, I'm going no, that's jacked up. You
shouldn't be allowed. That's uniquely offensive and there has to
be lines drawn.
Speaker 4 (11:01):
As I just said, you know, do you make the
whole even bigger? Though, although a reversal of Johnson might
be a feel good thing, are you making the whole bigger?
Because at this point we are left to litigate intent.
We are we are at the point where okay, it's
it's if if you cannot burn the American flag, it
(11:21):
may feel good and sound good and so forth, what
else then is going to be prohibited. It's a very
very big hole. And I you know, I'm not in
favor of flag burning. I told Mark yesterday. Look, until
if I go in the middle of the street and
burn the US flag, it's freedom of speech. If I
burn a gay flag, then it's it's a hate crime
(11:42):
and I'm going to jail. So until it's uniform in
what is outrageous.
Speaker 3 (11:47):
I don't think you can. I think you can burn
a pride flag. I don't think that that's First Amendment.
Speaker 4 (11:55):
You don't.
Speaker 3 (11:55):
You don't as long as it's your pride flag and
not their pride flag.
Speaker 4 (11:58):
You don't think that there would be what's ethnic intimidating,
not ethic, But what's the word. I'm going to intimidation
charges against me for doing that.
Speaker 3 (12:08):
If it is uniquely and I'm making law here, I
mean literally, I'm making I'm I'm saying what I would
love the Supreme Court to do. Take it away from intent.
And this is a symbol that is uniquely important to
(12:28):
a large chunk of our society. And we want our
Supreme Court to put a ring of protection around the Bible,
the Kuran, the Tora, the flag in the United States
of America. If you want to put the pride flag
in there. Put the Pride flag in there, and it
can go up on a case by case basis. Is
this a symbol that shall not be desecrated. It is
(12:52):
perfectly reasonable for the American people to demand that our
lawmakers listen to us and our Supreme Court to listen
to us and say, we find we want you to
focus on this is a uniquely offensive, uniquely important object,
(13:14):
and there is no valid purpose to desecrate it that
can be anything other than offensive. Like child pornography, it's
inherently offensive, it's inherently illegal. There are very few exceptions
to possession of child pornography. A cop, a detective, prosecutors
(13:37):
and judge. That's about it. Maybe Duri, I can't even
possess this stuff. The Supreme Court has already made it
clear there are certain things that enjoy certain protections. And
why wouldn't we make the nation's flag and the Pride
flag and the three major religions there sacred texts. You
(14:02):
cannot desecrate those is a mandatory. You're in prison at
stiff but there should be some punishment for it.
Speaker 4 (14:11):
So then, under that same line of thinking, that the
Jews in Scochie, Illinois were burning Nazi flags. What would
be the result there? Would we protect that Nazi flag?
Speaker 1 (14:21):
That's the Nazi.
Speaker 3 (14:22):
Nazi flag to the American people is not a sacred text,
it's not a sacred symbol. Burn away instead of looking
at the instead of looking at the context or the
conduct of the person, we are now looking at what
this thing represents. And they are just some things that
(14:45):
I think the American people, I think this is a
ninety ten issue. Guys, this is probably this is probably
a ninety ten issue, probably right, And the Supreme Court
can absolutely take into consideration the will of the people
and determining, you know what, we are going to create
a new era of exceptions to the First Amendment. And
(15:07):
we're calling them sacred symbols.
Speaker 1 (15:10):
That's that's incredible. And we'll see if it plays out
that way.
Speaker 2 (15:16):
He so stuffed for the defense and Columbus defense attorney
Brad Kaufel. Brad incredibly insightful, and I really appreciate you
jumping on with us today.
Speaker 1 (15:27):
And I'll be honest, I was.
Speaker 2 (15:29):
I'm listening to you like I'm sitting here, I'm glad
there aren't flies flying around. I'm like blown away by
by all of this. I think it's incredibly fascinating the
way this could all play.
Speaker 3 (15:40):
Near and dear. This should be near and dear to
every listener's heart.
Speaker 2 (15:43):
Yep, yep, no question about it. Brad, Thank you very much.
Appreciate your brother.
Speaker 1 (15:47):
All right, guys, take care all right,
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Football’s funniest family duo — Jason Kelce of the Philadelphia Eagles and Travis Kelce of the Kansas City Chiefs — team up to provide next-level access to life in the league as it unfolds. The two brothers and Super Bowl champions drop weekly insights about the weekly slate of games and share their INSIDE perspectives on trending NFL news and sports headlines. They also endlessly rag on each other as brothers do, chat the latest in pop culture and welcome some very popular and well-known friends to chat with them. Check out new episodes every Wednesday. Follow New Heights on the Wondery App, YouTube or wherever you get your podcasts. You can listen to new episodes early and ad-free, and get exclusive content on Wondery+. Join Wondery+ in the Wondery App, Apple Podcasts or Spotify. And join our new membership for a unique fan experience by going to the New Heights YouTube channel now!
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