Trump Wants to Jail Flag Burners

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1:51This is Bloomberg Law with June Grosso from Bloomberg Radio. 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 burn a flag, you get. And what it does is incite to riot. President Trump signed an executive order on Monday directing the U.S. Attorney General to prosecute people for burning the American flag. But flag burning is protected under the First Amendment under well-settled Supreme Court precedents. In fact, none other than the late Justice Antonin Scalia, a conservative icon, was part of the majority in the 1989 case that established that the Constitution protects burning the flag as a form of symbolic speech.

2:45Yeah, if I were king, I would not allow people to go about burning 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 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. Trump called the justices who made that decision a, quote, very sad court.

3:29And the order directs the attorney general to pursue litigation to challenge that 1989 precedent. You get one year in jail and it goes on your record. and you will see flag burning stopping immediately. 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 flag burning. I'm burning this flag as a protest to that illegal fascist president that sits in that house. 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.

4:23But states and even Congress have passed laws to prevent flag burning. Tell us about the seminal case the Supreme Court decided in 1989, where you represented Gregory Lee Johnson. Sure.

4:37David Cole:So Gregory Johnson burned an American flag in Dallas, Texas, in a protest outside of the Republican National Convention that year and was prosecuted 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. 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 v. Johnson ruled that the government may not criminalize expression through the burning of a flag simply because people find that message offensive. It was a five to four decision, but it didn't divide the court down ideological lines.

5:27In fact, conservative icon Justice Antonin Scalia was in the majority. Why do you think it didn't go down ideological lines?

5:35David Cole:So that's a great question. We won the case with the votes of two Republican appointees, Justice Kennedy and Justice Scalia, both of whom I think, you know, over time showed themselves to be committed to the First Amendment. Justice Stevens, also a committed First Amendment justice, dissented. I think in his case, it came down to the fact that he was a veteran. He was a veteran of World War II. He clearly was deeply offended by the very practice of burning a flag and therefore dissented. But over time, I think, you know, if you look back at the cases that preceded Texas versus Johnson, many justices, including liberal justices, expressed some reservation about whether or not flag burning should be protected by the First Amendment.

6:26David Cole:So it's not something that has divided the country along partisan lines. And will you explain the thinking of the justices in the majority and in the dissent? 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. It can't punish 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.

7:17David Cole:The dissent argued, well, this is really not so essential a form of expression. Chief Justice Rehnquist 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 wave it, but they can't burn it. 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. This case was called United States v. Eichmann, and it basically stemmed from Congress's response to Texas v.

8:06David Cole:Johnson. The Johnson decision came down, as controversial decisions often do, right before the 4th of July. Congress decided in its wisdom to stay in session rather than go out for the 4th of July recess so that virtually every member of Congress, Democratic and Republican alike, 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 had struck down in Texas v. Johnson had. And so you had Democrats and Republicans alike voting in favor of the Federal Flag Protection Act and maintaining that, notwithstanding what the Supreme Court said in Texas v.

9:00David Cole:Johnson, it should be a crime to burn the American flag. And that law 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 that it sends, that that message is deemed offensive by people. The fact that speech is deemed offensive by people is not a justification for throwing people in jail. It's in fact a justification for protecting that speech.

9:43David Cole:And so the court struck down the Federal Flag Protection Act on the same five to four vote. So President Trump is also with this executive order calling for Attorney General Pam Bondi to pursue litigation to challenge the Supreme Court's ruling in 1989. This Supreme Court is very different from that Supreme Court. Do you think that they would still uphold the precedent? Yes. This court is different from the court from 1989 and 1990, but this is, if anything, an even stronger pro-First Amendment court. And Texas v. Johnson is not just a kind of one-off. It is cited again and again and again for this basic premise, probably the most fundamental premise of free speech law, which is the fact that speech offends somebody is not a justification for the government to throw the speaker in jail.

10:41David Cole: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 wave the flag. We are very 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. 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 the First Amendment.

11:33So the cases are going to be limited to those where there is a violation of other laws?

11:40David Cole: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 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. other. So for example, many towns and cities prohibit burning of anything in public without a permit. You can't burn leaves, you can't burn wood in public without a permit.

12:28David Cole: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 been the case that that kind of law, in fact, the Supreme Court has said that kind of law would be perfectly permissible. It is very rare that that is the basis for a flag desecration prosecution, however. The other example that Trump puts forth is, well, if somebody burned a flag in such a way as it constituted incitement to imminent lawless action or fighting words, Those are not protected by the First Amendment.

13:11David Cole:Even pure speech, if it constitutes incitement to imminent lawless 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 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 desecration laws were enacted. And that the Supreme Court has held is an impermissible justification for targeting any form of speech.

13:57David Cole:So, yeah, if you come up with a case, and I have 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, you know, raising his 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 essentially theater engaged in by the president because it's good politics.

14:43David Cole: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 49 state legislatures voted to amend the Constitution after Texas versus Johnson and the United States versus Eichmann. 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. Coming up next, I'll continue this conversation with Georgetown Law Professor David Cole.

15:26Did Trump just give the veteran who burned the American flag outside the White House a defense? This is Bloomberg. This is the Bloomberg Tech Minute brought to you by ChachiPT. Now with ChachiPT Work. I'm Carol Masser. Globetrotters hunting for airfare bargains are in for a rude awakening, as the days of stumbling across a cheap seat on a popular flight could soon disappear. Bloomberg's Juan Ha reports that airlines from Delta to Virgin Atlantic are adopting artificial intelligence to change seat prices more quickly by weighing dozens of variables in real time, helping capture more revenue while shrinking pricing gaps that once allowed travelers to find bargain fares.

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18:22technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. President Donald Trump signed an executive order on Monday requiring the Justice Department to investigate and prosecute 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 Carey, a U.S.

19:08Army veteran, burned an American flag outside the White House in protest. I'm burning this flag as a protest to that illegal fascist president that sits in that house. Carey told Fox News he's ready to fight any federal charges in court. It wasn't a matter of disrespecting the flag. I'm a veteran. I fought under that flag, with that flag, for that flag. It's 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. 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.

19:49A 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 Service for igniting an object, then turned over to the U.S. Park Police and arrested. He was issued two 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?

20:23David Cole: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 burned a flag for protest. But now that Trump has issued this executive order and basically announced, I'm, as the president of the United States, I am directing the Justice Department to prosecute flag burners. Why? Because flag burning expresses an offensive message.

21:04David Cole:That essentially gives this protester evidence of selective prosecution. He can 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 that he wouldn't have had had the president not issued that executive order. And the Army veteran Kerry said he wants the D.C. U.S. 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.

21:50They'll be appealed. It'll just get caught up in appeals. And maybe the Supreme Court won't even take the case.

21:57David Cole:Yeah, I don't think the Supreme Court has any interest in particular in revisiting Texas v. Johnson. And it is, as I said before, one of the central precedents in the entire First Amendment lexicon. It 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 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 v.

22:40David Cole:Johnson in the first place. And were that question presented, I would be shocked if this Supreme Court agreed. As far as any possible penalty for any possible charges, Trump said you get one year in jail, no early exits, no nothing. Do you know where that one year came from? Because I don't even think it's in the executive order. No, 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.

23:23There'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?

23:42David Cole: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. That's why it protects corporations. And so it also protects foreign nationals. And so if there were an immigration statute that said 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 a visa or deport someone because they burn an American flag.

24:25David Cole:So there's no statutory 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. David, have there been cases where, in recent history, since the Supreme Court's rulings, where people were prosecuted for burning flags? The decisions in Johnson and Eichmann essentially put the issue to rest. There was one incident actually involving Gregory Johnson, who burned a flag in Cleveland, I believe, outside of another convention.

25:08David Cole:I can't remember which party's convention it was. And he was prosecuted, again, under a neutral law that banned burning of anything in public. His case was ultimately dismissed. But no, there have 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 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.

25:48David Cole: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 noses, the best way I can, you know, effectuate that is by saying, whatever you do, don't stick broccoli up your nose. 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. And I think what you saw, you know, the day that President Trump issued his order is that the New York legislator was right.