Even Justice Antonin Scalia Admitted Flag Burning Was Protected Free Speech
Trump signed an Executive Order seeking to criminalize flag burning, which the late justice (who was a terror) once said was the kind of speech that ”tyrants would seek to suppress.”
In Philadelphia in 2015, Supreme Court Justice Antonin Scalia said, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” It’s too bad Justice Scalia didn’t live to see President Donald Trump’s second term because, on Monday, Trump signed an executive order seeking to criminalize flag burning.
“Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength,” reads the order. “Desecrating it is uniquely offensive and provocative.”
Trump’s EO aims to challenge the 1989 Supreme Court ruling that protects flag burning under free speech. “If there is a bedrock principle underlying the First Amendment,” Justice William Brennan wrote in the 5-4 majority opinion of Texas v. Johnson, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (I doubt Brennan foresaw that a septuagenarian would one day be throwing tantrums inside the Oval Office and on his social media app, but that’s besides the point.)
Trump also ordered Attorney General Pam Bondi to find a case that could challenge the Johnson decision. It further instructs her to “prioritize the enforcement to the fullest extent possible,” and gives her a pass to charge retroactive flag-burners with other crimes, such as disturbing the peace or breaking environmental laws. The text also commands Trump’s cabal of White House lackeys to flag (lol) and detain any immigrants accused of the behavior, making clear that the EO is part of his goal of conducting the largest mass deportation in history.
The move is pretty terrifying even for this current administration, though it’s certainly in line with Trump setting figurative fire to many of our other governing principles and rights.But targeting flag burners with a one-year jail sentence has been a long-time goal for the president; he tweeted about it in 2016, 2019, mentioned it in 2020, and repeated it on the campaign trail last year. In June, Missouri Senator Josh Hawley legislated the president’s dreams into a bill, tweeting: “I’m with Trump on this one: anyone who burns our flag committing a crime should go to jail—double the sentence. Evidently all of Fort Bragg agrees.” So far, the bill has not progressed beyond being introduced.
Scalia didn’t live to see Trump elected president—though he was reportedly “refreshed” and “fascinated” by Trump’s first campaign. But even though Justice Scalia was a Republican who was against abortion, gay rights, and affirmative action, he also understood that America was definitely not a monarchy. “Yes, if I were king, I would not allow people to go about burning the American flag,” he told CNN in an interview in 2012. “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. That was the main kind of speech that tyrants would seek to suppress.”
