Flag burning has been recognized for decades as an act of symbolic speech, protected under the first amendment.
WASHINGTON — President Donald Trump on Monday signed an executive order charging the Department of Justice with investigating cases of flag desecration and burning, saying that anybody who burns a U.S. flag would be charged with inciting a riot.
Trump said burning an American flag “incites riots at levels we’ve never seen before.”
Anybody charged for destroying a flag would be charged with inciting a riot and receive one year in jail with no opportunity for early release, Trump claimed.
Trump’s advisers said the executive order “wouldn’t fall afoul of the First Amendment,” which protects the freedom of speech, but did not expand on what that meant.
Fox News, which was the first outlet to report about the order, cited a fact sheet provided by the White House.
“The American flag is the most sacred and cherished symbol of the United States of America, and desecrating it is uniquely and inherently offensive and provocative. It is a statement of contempt and hostility toward our Nation, and an act used by groups of foreign nationals calculated to intimidate and threaten violence against Americans,” the fact sheet shared with Fox reads.
Flag burning has been a contentious legal topic for more than a century, with the first Supreme Court case related to the practice reaching the high court in 1907.
In that case, the Supreme Court held that state governments had the authority to ban desecration of the United States flag.
But in the decades since then, the court has walked back that ruling, determining that symbolic speech using the flag was covered under the first amendment. The 1989 ruling in Texas v. Johnson saw the Supreme Court hold, in a 5-4 decision, that Johnson’s burning of the flag was protected expression under the first amendment, according to the Free Speech Center at Middle Tennessee State University.
Recent flag burnings have protested the Trump administration’s policies on Israel and immigration, with demonstrators across the country burning flags in symbolic gestures against the hardline immigration practices the Trump administration is imposing with ICE raids, as well as U.S. support of Israel as Israeli forces continue an offensive in Gaza that outside observers have called a genocide and cautioned about famine.
The Associated Press contributed to this story.
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