President Trump on Monday signed the “Prosecuting Burning of the American Flag” Executive Order into law, prioritizing the prosecution of crimes that involve the burning of the American flag and potentially opening challenges to the interpretation of the First Amendment protections for flag burning.
It does not appear to make burning the American flag a crime, but crimes that involve burning a flag will be prioritized.
“Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength,” the order reads.
“Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot.”
The order also describes the act as “a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth,” used by foreign nationals, and it directs the Attorney General and the Secretary of Homeland Security to “deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a).”
It further argues that flag burning, “conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words,’” is not constitutionally protected under the First Amendment.
The order directs the Department of Justice and the Attorney General to “prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment,” including “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.”
The Attorney General is also permitted to “pursue litigation to clarify the scope of the First Amendment exceptions in this area.”
White House Staff Secretary Will Scharff told the President, the order “charges your department of justice with investigating instances of flag burning, and then where there’s evidence of criminal activity, where prosecution wouldn’t fall foul of the First Amendment, it instructs the Department of Justice to prosecute those who are engaged in these instances of flag burning.”
While signing the order into law, President Trump reasoned that the action causes people to go “crazy” and that “what it does is incite to riot.”
“And what the penalty is going to be if you burn a flag, you get one year in jail. No early exits, no nothing,” he said. “you will see flag burning stopping immediately, just like when I signed the Statue and Monument Act— 10 years in jail if you hurt any of our beautiful monuments. Everybody left town. They were gone. Never had a problem after that, it’s pretty amazing.”
Hellbound and Down 