WASHINGTON — President Donald Trump on Monday signed an executive order requiring the Justice Department to investigate and prosecute people for burning the American flag, an activity that the U.S. Supreme Court has ruled is legitimate political expression protected by the U.S. Constitution.
The order the Republican president signed in the Oval Office acknowledged the court’s 5-4 ruling in a case from Texas in 1989, but said there is still room to prosecute flag burning if it “is likely to incite imminent lawless action” or amounts to “fighting words.”
In that case, the justices ruled 5-4 that the First Amendment protects flag burning as legitimate political expression. The late Justice Antonin Scalia, the conservative icon who Trump has repeatedly praised, was in the majority.
Trump said Monday that burning the U.S. flag “incites riots at levels we’ve never seen before,” with some people “going crazy” over burning it and others expressing anger at people for burning it. He did not offer examples.
The text of the executive order states that desecrating the American 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. Burning this representation of America may incite violence and riot.”
The order calls on the attorney general to prioritize enforcement “to the fullest extent possible” of criminal and civil laws against flag burning that cause harm unrelated to the First Amendment.
Trump said the penalty for flag-burning would be one year in jail with no opportunity for early release.
The order also states that foreign nationals who burn the flag could face having their visas, residency permits, naturalization proceedings and other immigration benefits revoked. They could also be deported.
Trump said the court that ruled that flag burning is constitutionally protected was a “very sad court.”
“I guess it was a 5 to 4 decision. They called it freedom of speech,” the president said. “But there’s another reason, which is perhaps much more important. It’s called death.”
“Because what happens when you burn a flag is the area goes crazy,” Trump said. “If you have hundreds of people, they go crazy.”
