Country commemorates its 250th anniversary by proposing a constitutional amendment permitting flag burning

In a recent move, President Donald Trump unveiled a series of executive orders aimed at curtailing crime and disorder nationwide. One of these orders has sparked a constitutional debate: it requires the attorney general to prioritise the prosecution of those who burn the American flag.

This order is framed to permit prosecution only when a flag is burned in a way that is not protected speech, such as when it incites "imminent lawless action" or constitutes "fighting words." However, it contradicts a landmark 1989 Supreme Court decision in Texas v. Johnson that found that flag burning is protected speech under the First Amendment.

The 1989 ruling, which was by a 5-4 margin, came during a time when flag burning was a popular mode of protest, particularly during the Vietnam War. No person was convicted in the United States in 1989 for publicly burning the American flag, and the Court's ruling depended on the twists and turns of twentieth-century free speech law.

Chief Justice William Rehnquist, in his dissent in Johnson, argued that flag burning could be considered "low-value speech" not worthy of constitutional protection where it imperiled public order or decency. Rehnquist believed that the First Amendment does not invalidate laws making the public burning of the flag illegal.

Patriotism, however, runs at historic lows today, and the president's affection for the flag is consistent with public opinion, which has long disdained expressive flag burning. In a June 2020 poll, a plurality of Americans still said flag burning should be illegal. In 2006, Pew reported that nearly three-in-four people said flag burning should be illegal, and roughly half said it should be unconstitutional.

However, there is a simple way for Trump to square his beliefs with the Constitution: call on Congress and the states to pass an amendment banning the burning of American flags. An amendment giving Congress the power to prohibit the physical desecration of the flag of the United States has passed the House before, though not the Senate.

Some legal scholars argue that even a more originalist Court might have ruled differently in the Johnson case. Chad Flanders, professor of law at St. Louis University, has suggested that the Court's ruling was influenced by the political climate of the time, rather than a strict interpretation of the Constitution.

The current Court is unlikely to revisit the Johnson case, but the debate surrounding flag burning and free speech continues. Charles Fain Lehman, a fellow at the Manhattan Institute and senior editor of City Journal, has written that the flag is regarded with an almost mystical reverence by millions of Americans, and that this reverence should be respected, even in the face of political protest.

As the debate continues, it is clear that the issue of flag burning is complex and multifaceted, touching on issues of free speech, patriotism, and the role of the government in regulating public expression.

Country commemorates its 250th anniversary by proposing a constitutional amendment permitting flag burning