Trump wants people who burn the American flag to spend a year in jail. But here’s the thing He can’t legally make that happen.
On August 25 Trump signed an executive order urging federal prosecutors to go after anyone caught burning the US flag. He called it disrespectful and said those who do it should face up to 12 months behind bars. But there’s a big problem with that The Supreme Court already ruled that flag burning is a form of free speech. And that means Trump’s order doesn’t hold weight.
In 1989 the landmark Texas v Johnson case made it clear that burning the flag is protected under the First Amendment. The court said that even though it may be offensive it’s still a form of political expression. Congress tried to fight back with the Flag Protection Act but the Supreme Court shut that down too in United States v Eichman in 1990.
Trump’s order might make headlines but it can’t override the Constitution or change what the Supreme Court already decided. Only a constitutional amendment or a future court ruling could do that.
His team is trying to walk a fine line saying they’ll only go after people when it leads to lawless actions but even then the legal bar is high. Burning a flag in protest by itself isn’t enough to get you locked up.
There was already a case this week where someone burned a flag outside the White House in protest of Trump’s new order.
They were charged but not for burning the flag. The charge was for lighting a fire in a restricted federal area. In other words not what
Trump’s order was trying to punish.
Even some conservatives are pushing back saying this is more about optics than law. Legal experts say this is likely to get tossed if it’s ever challenged in court.
Flag burning might make some people uncomfortable but the Constitution says it’s legal. Trump’s executive order sounds tough but it’s not enforceable under current law. At the end of the day free speech still wins even when it’s wrapped in controversy.
