Wait, Can He Actually Do That? Part 20: The Flag Burning Executive Order's Ineffective Effort to Distinguish SCOTUS Precedent

It has been several months since my last entry in the "Wait, Can He Actually Do That?" series. That's not because President Trump has taken any time off from acting unlawfully. In fact, probably half or even more of the essays I've written for this blog and for Verdict in the intervening period have addressed legally dubious policies by Trump or his administration. But for many of those policies the real question has not been whether they were lawful but whether the administration could get away with acting unlawfully.

Too often the answer has been yes--for a variety of reasons. Sometimes no one has standing to challenge the actions. In some circumstances, what Trump has done was plainly unlawful under existing precedents but then SCOTUS moved the goalpoasts. Often, even success in the courts would come too late to provide real relief and would not prevent the administration from launching a new attack. That is the logic that has led some law firms and universities to capitulate to Trump's unlawful demands.

The can-he-get-away-with-it questions continue to pile up, but from time to time it is worth lingering over just how illegal Trump's policies are. Yesterday Trump served up a cornucopia of policies that invite such inquiry. The top three, in my view, were his purported for-cause removal of Lisa Cook from the Federal Reserve Board of Governors, his executive order expanding the federal role in D.C. law enforcement and preparing the ground for national guard deployments in other cities, and his executive order attempting to end cashless bail.

I may turn to one of those in a future essay, but today I'll focus on an unconstitutional action Trump took yesterday that doesn't even earn a bronze medal in the unconstitutionality Olympics. He signed an executive order tasking the Justice Department with bringing prosecutions of persons who burn American flags.

Wait, can he actually do that? Didn't the Supreme Court rule in Texas v. Johnson (1989) and then again in United States v. Eichman (1990) that laws banning the burning of U.S. flags are unconstitutional because they target the message expressed by such burnings? Yes, it did.

To be sure, the Flag EO acknowledges the existence of Johnson. The EO purports to circumvent Johnson and Eichman through the following:

Notwithstanding the Supreme Court’s rulings on First Amendment protections, the 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.  See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).

That's either deliberately misleading or the product of incompetence on the part of whatever lawyer(s) wrote the EO.

It's true that at the cited pages of Johnson, the Court does state that Johnson--who burned a flag as a protest outside the 1984 Republican National Convention--did not engage in incitement or fighting words. And if Johnson and Eichman were the only relevant cases, then I might agree with the assertion in the EO that the Court has left open the question whether someone can be prosecuted under a law banning flag burning if his conduct amounts to incitement or fighting words.

But they aren't the only relevant cases. Two years after Eichman, the Court--in an opinion by Justice Scalia (joined by Justice Thomas, the only current member of the Court who was on the Court then)--decided R.A.V. v. City of St. Paul. That ruling clearly indicates that the Trump E.O. is unconstitutional.

The City of St. Paul, Minnesota passed a hate-speech ordinance that made it a crime to

place[] on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which [the perpetrator] knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . . .

R.A.V. (identified only by initials because he was under 18 at the time of the conduct) burned a cross on the lawn of the home of a Black family and was charged under the ordinance. He raised a First Amendment defense, claiming that while he could be charged with other offenses, the ordinance targeted him for his speech. The Minnesota Supreme Court allowed the prosecution to proceed. It specifically cited and distinguished Johnson on precisely the same ground that the Trump EO now does--that the Court there had not confronted a case involving incitement or fighting words. The Minnesota Supreme Court construed the St. Paul ordinance to apply only to those incidents of cross burning that amount to fighting words. So limited, that court said, the ordinance was valid.

The U.S. Supreme Court reversed. Justice Scalia expressly rejected the reasoning of the Minnesota Supreme Court that is now the basis for the Trump EO. It doesn't matter, he explained, that St. Paul only specially criminalizes cross burnings if they amount to fighting words. Although the Court has sometimes referred to incitement and fighting words as "unprotected" categories of speech, that doesn't mean that the government has carte blanche to pick and choose which subset of the unprotected speech to prohibit. For example, he explained, state tort law can forbid libel but not "only libel critical of the government." (Emphasis in original.) Singling out cross-burnings that amount to fighting words but not other kinds of fighting words was censorship forbidden by the First Amendment, Justice Scalia concluded for the Court.

That logic applies to flag burning amounting to fighting words or incitement no less than it applies to cross burning amounting to fighting words or incitement. Thus, if the federal government were indeed to carry out the executive order and target flag burners whose flag burning amounts to incitement or fighting words, it would be acting unconstitutionally.

Can Trump nonetheless get away with it? I suppose that depends on what "it" is.

If "it" is riling up his base with red meat, then sure. The EO is a nice bit of performance art. 

If "it" means successfully prosecuting flag burners, that's a different question. While signing the Flag EO, Trump said that people who burn American flags will face a year in prison. One year in prison is the maximum sentence for violating the statute that the Supreme Court invalidated in Eichman. Thus, presumably whatever White House functionary explained to Trump what he was supposed to say about the EO had that statute in mind as the basis for prosecutions. (In the U.S., judicial invalidation of a law does not remove it from the statute books.)

We don't know whether the functionary neglected to tell Trump that flag burners would be prosecuted only if their flag burning amounted to incitement or fighting words. We do know that Trump didn't say that. Perhaps the functionary mentioned the point but Trump didn't comprehend it. We can be confident that Trump didn't actually read the EO.

In any event, as we have seen, in light of R.A.V., the federal statute invalidated in Eichman remains invalid even if it is enforced only against flag burners whose flag burning amounts to incitement or fighting words. Unless and until SCOTUS repudiates R.A.V., the flag burning EO will be ineffective as a means of reviving that statute.

But wait. Although Trump's reference to a year in prison during the signing ceremony invokes the statute invalidated in Eichman, the Flag EO itself doesn't expressly refer to that statute. Rather, it tasks the Attorney General with prosecuting flag burners who, in the course of their flag burning, violate other, "content-neutral" laws. According to the EO, these include "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."

Can he do that? The short answer is maybe. As I discussed here on the blog just yesterday in relation to the FBI investigation of John Bolton, a prosecution that is brought in retaliation for free speech violates the First Amendment, but it is not entirely clear whether a defendant to such a prosecution can succeed in having the indictment dismissed if there is probable cause to believe he committed the crime. Moreover, even if the existence of probable cause does not defeat a retaliatory prosecution defense, defendants will usually have a difficult time establishing that retaliation for free speech was the motive for the prosecution.

But not with respect to flag burning. The EO itself is very good evidence of the government's censorial motive. Thus, the primary effect of the flag EO is to make it more difficult for the government to bring successful prosecutions against flag burners who violate content-neutral laws in the course of their flag burning. The flag EO is not just performance art. It is also an own goal.

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Here's how Justice Brennan concluded his opinion for the Court in Eichman: "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." It is difficult to imagine how any act of flag burning could do nearly as much to desecrate the symbols, principles, and institutions of American constitutional democracy as the Trump administration does every day.

Michael C. Dorf

Find all the essays in the Wait, Can He Actually Do That? series here.