President Trump signed an executive order on Monday that will outlaw any burning of the US flag and make it an offense with a penalty of one year in jail.
The order faces controversy due to its contradiction with a 1989 US Supreme Court ruling (Texas v. Johnson) that deemed the action in line with the freedom of speech granted by the First Amendment to the US Constitution.
The order states the president’s rationale for criminalizing the burning of the American flag.
“Desecrating [the US flag] 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,” the order states. “Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”
The order further allows the US Department of Justice to establish the category of the crime committed and laws violated by the person charged with flag burning.
“This may include, but is not limited to, 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 US Supreme Court ruled in 1989, when Gregory Lee Johnson burned a US flag outside of the 1984 Republican National Convention and was charged by a Texas court with desecrating a venerated object, a state statute, “that flag burning constitutes a form of ‘symbolic speech’ that is protected by the First Amendment.”
The executive order recognizes the SCOTUS ruling, but argues that it doesn’t fully permit the desecration of the US flag.
“[T]he Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected,” the order states.
Foreign nationals who are charged with flag burning could face the revocation of visas and have their naturalization process also thwarted.
