An 80/20 Issue With Dissonance
Very few people are in favor of burning an American flag. Donald Trump’s executive order to jail those who burn the American flag is undoubtedly going to provoke progressives to burn American flags. None of them will actually be found guilty of a crime unless they have stolen someone else’s flag. Burning flags in the United States is constitutionally protected free speech.
President Trump’s executive order tries to work around Texas v. Johnson, 491 U.S. 397 (1989), by claiming that the case did not consider “fighting words” or “incitement.” That case is the Supreme Court case declaring that burning the American flag in protest is protected political speech. The President argues that burning the American flag provokes riots. He likewise tries to invoke the “fighting words doctrine” from Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), which held that words that provoke an immediate and violent reaction are not subject to free speech protections.
Unfortunately for the President, Chaplinksy has since been reined in by the Supreme Court. See e.g. Terminiello v. City of Chicago, 337 U.S. 1 (1949) and Gooding v. Wilson, 405 U.S. 518 (1972). At this point, the fighting words doctrine boils down to speech being prosecuted only if it is speech directed at an individual, designed to provoke that specific individual to respond with violence. Burning a flag ain’t it.
Some argued yesterday that since Johnson was only a 5-4 decision, and because we have a more conservative Supreme Court now, perhaps the Court would now ban flag burning. After all, look at Roe v. Wade.
The problem with the logic is that it runs counter to the shift in the United States Supreme Court. Johnson had Antonin Scalia in the majority, but he joined a coalition of liberals, including Justices Brennan, Blackmun, and Marshall, along with moderate Anthony Kennedy.
Scalia got replaced by Neil Gorsuch, who is a free speech absolutist. Kennedy got replaced by Brett Kavanaugh, who shares Kennedy’s views on speech. Ruth Bader Ginsburg got replaced by Amy Coney Barrett, Antonin Scalia’s favorite law clerk, who takes an expansive position on free speech. As the Court shifted to the right on abortion, it also shifted against government control of political speech, which flag burning is. The same intellectual shift against government campaign finance reforms as detrimental to speech would apply here. Likewise, John Roberts is way more zealous about prohibiting the government from regulating speech than William Rehnquist, who was in the minority in Johnson.
So you are not going to see a Supreme Court coalition suddenly criminalizing flag burning.
But that’s not the point.
