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Trump Wants to Jail Flag Burners · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: And what the penalty is going to be. If you
0:11
Speaker 2: burn a flag, you get one year in jail, no
0:15
Speaker 2: early exits, no nothing. You get one year in jail.
0:19
Speaker 2: If you're burn a flag, you get And what it
0:21
Speaker 2: does is insight to write it.
0:23
Speaker 1: President Trump signed an executive order on Monday directing the
0:27
Speaker 1: US Attorney General to prosecute people for burning the American flag.
0:33
Speaker 1: But flag burning is protected under the First Amendment under
0:37
Speaker 1: well settled Supreme Court precedence. In fact, none other than
0:41
Speaker 1: the late Justice antonin Scalia, a conservative icon, was part
0:46
Speaker 1: of the majority in the nineteen eighty nine case that
0:49
Speaker 1: established that the Constitution protects burning the flag as a
0:54
Speaker 1: form of symbolic speech.
0:56
Speaker 3: Yeah, if I were king, I would not allow people
0:59
Speaker 3: to go about bernie the American flag. However, we have
1:02
Speaker 3: a First Amendment which says that the right of free
1:07
Speaker 3: speech shall not be abridged, and it is addressed in
1:11
Speaker 3: particular to speech critical of the government. I mean that
1:14
Speaker 3: was the main kind of speech that tyrants would seek
1:17
Speaker 3: to suppress. Burning the flag is a form of expression.
1:21
Speaker 3: Speech doesn't just mean written words or oral words. It
1:26
Speaker 3: could be semaphore. Burning a flag is a symbol that
1:30
Speaker 3: expresses an idea. I hate the government, the government is
1:34
Speaker 3: unjust whatever.
1:35
Speaker 1: Trump call the justices who made that decision a quote
1:39
Speaker 1: very sad court. And the order directs the Attorney General
1:43
Speaker 1: to pursue litigation to challenge that nineteen eighty nine President.
1:48
Speaker 2: You get one year in jail, and it goes on
1:50
Speaker 2: your record and you will see flag burning sapping immediately.
1:55
Speaker 1: But just two hours later, a combat veteran burned an
1:59
Speaker 1: American flag across the street from the White House to
2:03
Speaker 1: protest the executive order targeting flagburning.
2:07
Speaker 4: I'm burning it flag at the progress that illegal statics, President,
2:13
Speaker 4: that's in that house.
2:15
Speaker 1: My guest is David Cole, a professor at Georgetown Law.
2:18
Speaker 1: He represented the men who burned the flags in the
2:21
Speaker 1: two leading Supreme Court cases. David, there's a long history
2:25
Speaker 1: in this country of desecrating or burning the flag as
2:30
Speaker 1: a form of political protest. That goes back to the
2:33
Speaker 1: Civil War. But states and even Congress have passed laws
2:37
Speaker 1: to prevent flag burning. Tell us about the Seminole case
2:41
Speaker 1: the Supreme Court decided in nineteen eighty nine, where you
2:44
Speaker 1: represented Gregory Lee Johnson.
2:47
Speaker 5: Sure so. Gregory Johnson burned an American flag in Dallas, Texas,
2:54
Speaker 5: in a protest outside of the Republican National Convention that year,
2:59
Speaker 5: and was skeetered under a Texas statute that made it
3:03
Speaker 5: a crime to burn the flag in a way that
3:06
Speaker 5: would deeply offend onlookers. He was convicted in the trial court.
3:11
Speaker 5: That conviction was overturned by the highest court in Texas,
3:15
Speaker 5: but Texas took the case up to the Supreme Court,
3:18
Speaker 5: and the Supreme Court in Texas versus Johnson, ruled that
3:22
Speaker 5: the government may not criminalize expression through the burning of
3:27
Speaker 5: a flag simply because people find that message offensive.
3:33
Speaker 1: It was a five to four decision, but it didn't
3:36
Speaker 1: divide the court down ideological lines. In fact, conservative icon
3:40
Speaker 1: Justice Antonin Scalia was in the majority. Why do you
3:44
Speaker 1: think it didn't go down ideological lines?
3:47
Speaker 5: So that's a great question. We won the case with
3:50
Speaker 5: the votes of two Republican appointees, Justice Kennedy and Justice Scalia.
3:55
Speaker 5: Both of them, I think, you know, over time, showed
3:58
Speaker 5: themselves to be committed to the First Amendment. Justice Stevens
4:02
Speaker 5: also a committed First Amendment to Justice dissented, I think
4:06
Speaker 5: in his case, it came down to the fact that
4:08
Speaker 5: he was a veteran. He was a veteran of World
4:11
Speaker 5: War Two. He clearly was deeply offended by the very
4:17
Speaker 5: practice of burning the flag and therefore dissented. But over time,
4:22
Speaker 5: I think, you know, if you look back at the
4:23
Speaker 5: cases that preceded Texas serviss Johnson, many justices, including liberal justices,
4:31
Speaker 5: expressed some reservation about whether or not flag burning should
4:36
Speaker 5: be protected by the First Amendment. So it's not something
4:38
Speaker 5: that has divided the country along partisan lines, and will you.
4:42
Speaker 1: Explain the thinking of the justices in the majority and
4:46
Speaker 1: in the discent.
4:47
Speaker 5: So the majority held that the justification for throwing someone
4:53
Speaker 5: in jail for burning the flag is that the message
4:59
Speaker 5: sent by engaging in that conduct is offensive. And the
5:03
Speaker 5: court held that under the First Amendment, the government has
5:07
Speaker 5: to maintain neutrality in the field of expression. Can't punish
5:13
Speaker 5: speech simply because it or a majority of people find
5:18
Speaker 5: a particular message to be offensive. Once you go down
5:21
Speaker 5: that road, virtually anything can be prohibited by the government
5:26
Speaker 5: because one man's offense is another man's truth. The dissent argued, well,
5:31
Speaker 5: this is really not so essential a form of expression.
5:36
Speaker 5: Chief Justice Rank was called flag burning quote an inarticulate grunt,
5:41
Speaker 5: And there's a very powerful interest in preserving the unity
5:46
Speaker 5: that the symbol expresses, and therefore states should be permitted
5:52
Speaker 5: to prescribe how people can use the flag. They can
5:56
Speaker 5: waive it, but they can't burn it.
5:58
Speaker 1: One year later, Congress passed a law criminalizing burning the
6:02
Speaker 1: American flag, and in another case where you represented the defendant,
6:07
Speaker 1: the Supreme Court struck down that law right.
6:10
Speaker 5: This case was called the United States versus Iikmen, and
6:13
Speaker 5: it basically stemmed from Congress's response to Texas versus Johnson.
6:17
Speaker 5: The Johnson decision came down, as controversial decisions often do,
6:22
Speaker 5: right before the fourth of July. Congress decided in its
6:26
Speaker 5: wisdom to stay in session rather than go out for
6:29
Speaker 5: the fourth of July recess, so that virtually every member
6:33
Speaker 5: of Congress, democratic and Republican alli could get up at
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Speaker 5: the lectern and denounce the Supreme Court for this unpatriotic decision.
6:42
Speaker 5: And then Congress proceeded in the following year to amend
6:47
Speaker 5: federal law to prohibit flag burning and purportedly to avoid
6:52
Speaker 5: the particular problems that the Texas statute that the Court
6:56
Speaker 5: had struck down in Texas versus Johnson had So you
7:00
Speaker 5: had Democrats and Republicans alike voting in favor of the
7:04
Speaker 5: Federal Flag Protection Act and maintaining that notwithstanding with the
7:09
Speaker 5: Supreme Court said in Diagnos missus Johnson, it should be
7:13
Speaker 5: a crime to burn the American flag. And that law
7:16
Speaker 5: was violated the day it took effect in two cases,
7:20
Speaker 5: and I was counsel for the defendants in both of
7:23
Speaker 5: those cases. That went right up to the Supreme Court
7:26
Speaker 5: the following year, and the Court essentially said, we meant
7:30
Speaker 5: what we said a year ago. The only justification for
7:34
Speaker 5: prohibiting the burning of an American flag is the message
7:39
Speaker 5: that it sends. That that message is deemed defensive by people.
7:44
Speaker 5: The fact that speech is deemed defensive by people is
7:47
Speaker 5: not a justification for throwing people in jail. It's, in fact,
7:52
Speaker 5: a justification for protecting that speech. And so the Court
7:55
Speaker 5: struck down the Federal Flag Protection Act on the same
7:59
Speaker 5: five to four vote.
8:01
Speaker 1: So President Trump is also with this executive order calling
8:04
Speaker 1: for Attorney General Pam Bondy to pursue litigation to challenge
8:09
Speaker 1: the Supreme Court's ruling. In nineteen eighty nine, this Supreme
8:13
Speaker 1: Court is very different from that Supreme Court. Do you
8:17
Speaker 1: think that they would still uphold the president.
8:21
Speaker 5: Yes, this court is different from the court from nineteen
8:25
Speaker 5: eighty nine to nineteen ninety. But this is, if anything,
8:27
Speaker 5: an even stronger pro First Amendment court, and Texas versus
8:32
Speaker 5: Johnson is not just the kind of one off. It
8:35
Speaker 5: is cited again and again and again for this basic premise,
8:40
Speaker 5: probably the most fundamental premise of pre speech law, which
8:44
Speaker 5: is the fact that speech offends somebody is not a
8:48
Speaker 5: justification for the government to throw the speaker in jail.
8:52
Speaker 5: And that's ultimately what punishing flag burners is about. It's
8:56
Speaker 5: about throwing them in jail because we would be, you know,
9:01
Speaker 5: very pleased if they waive the flag. We are very
9:04
Speaker 5: upset if they burn the flag. But either way, you
9:07
Speaker 5: are using the flag to express a message, and the
9:11
Speaker 5: government is not allowed to tell us what messages we
9:15
Speaker 5: can and cannot express through symbolic speech or otherwise.
9:20
Speaker 1: Now, Trump's executive order doesn't direct the Attorney General to
9:25
Speaker 1: prosecute those who burn flags for the flag burning itself,
9:29
Speaker 1: but it says the Justice Department should bring cases quote
9:33
Speaker 1: against acts of American flag desecration that violate applicable content
9:38
Speaker 1: neutral laws while causing harm unrelated to expression, consistent with
9:43
Speaker 1: the First Amendment. So the cases are going to be
9:46
Speaker 1: limited to those where there's a violation of other laws.
9:52
Speaker 5: So this executive order is, I suppose, as befitting something
9:56
Speaker 5: that is ultimately about symbols, almost entirely symbolic, because it acknowledges,
10:01
Speaker 5: as it must, that the Supreme Court has decisively ruled
10:05
Speaker 5: that you can't punish someone for burning a flag. And
10:09
Speaker 5: what it does it says, well, there may be some
10:12
Speaker 5: circumstances in which one could where the reason you're engaged
10:18
Speaker 5: in the prosecution is not the burning of the flag
10:23
Speaker 5: per se, but some other interest altogether. So, for example,
10:28
Speaker 5: many towns and cities prohibit burning of anything in public
10:34
Speaker 5: without a permit. You can't burn leaves, you can't burn
10:37
Speaker 5: wood in public without a permit. That law can be
10:40
Speaker 5: applied to the burning of an American flag because the
10:43
Speaker 5: law is not about speech, it's not about what burning
10:47
Speaker 5: a flag communicates. It's an environmental law or fire safety
10:52
Speaker 5: law that is neutral as to speech. And it's long
10:55
Speaker 5: been the case that that kind of law. In fact,
10:58
Speaker 5: the Supreme Court is said that kind of law would
11:00
Speaker 5: be perfectly permissible. It is very rare that that is
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Speaker 5: sphasis for a flag dessecration prosecution. However, and the other
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Speaker 5: example that the Trump puts forth these as well, if
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Speaker 5: somebody burned a flag in such a way as it
11:14
Speaker 5: constituted incitement to imminent wawless action or fighting words, those
11:20
Speaker 5: are not protected by the First Amendment. Even pure speech,
11:24
Speaker 5: if it constitutes incitement to emminent wallless action or fighting words,
11:28
Speaker 5: is not protected by the First Amendment. So if flag
11:32
Speaker 5: burning fell into those very very narrow categories, you could
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Speaker 5: prosecute it. That's true, but sort of trivial and largely irrelevant,
11:41
Speaker 5: because people burn flags not to engage in fighting words,
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Speaker 5: not to incite some imminent lawless action, but to protest
11:51
Speaker 5: what the American government is doing. That's why they burn flags,
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Speaker 5: and that is exactly why flag dessecration laws were inactive,
12:00
Speaker 5: and that the Supreme Court is held is an impermissible
12:04
Speaker 5: justification for targeting any form of speech. So, yeah, if
12:09
Speaker 5: you come up with a case, and I've not seen
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Speaker 5: one in my entire lifetime where someone burns a flag
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Speaker 5: in order to send a signal to some group that
12:19
Speaker 5: is steeled to action to engage in illegal conduct. Well, sure,
12:24
Speaker 5: just as you could criminalize that person from raising his
12:28
Speaker 5: hand to incite that lawless action, you could penalize burning
12:33
Speaker 5: a flag if it's being used for that purpose. But
12:36
Speaker 5: it's really a null set And so I think at
12:38
Speaker 5: the end of the day, Trump's executive order is itself
12:43
Speaker 5: a kind of a nullity. It's a political act. It's
12:46
Speaker 5: not going to have any real world effects, and it's
12:50
Speaker 5: essentially theater engaged in by the President because it's good politics.
12:55
Speaker 5: It's easy to be on the side of condemning the
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Speaker 5: burning of the American flag. That's why Democrats and Republicans
13:03
Speaker 5: have done that for a long time. That's why forty
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Speaker 5: nine state legislatures voted to amend the Constitution after Texas versus.
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Speaker 5: Johnson and the United States versus Aikman, and the amendment
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Speaker 5: effort only failed by a few votes in the Senate.
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Speaker 5: Because the easy political act is to condemn these kinds
13:23
Speaker 5: of expressions. The hard thing, the courageous thing, is to
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Speaker 5: protect them, even if we find them, and even because
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Speaker 5: we find them detestable and offensive.
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Speaker 1: Coming up next, I'll continue this conversation with Georgetown law
13:36
Speaker 1: professor David Cole did Trump just give the veteran who
13:40
Speaker 1: burned the American flag outside the White House a defense?
13:44
Speaker 1: This is Bloomberg. President Donald Trump signed an executive order
13:51
Speaker 1: on Monday requiring the Justice Department to investigate and prosecute
13:56
Speaker 1: people for burning the American flag, something the Supreme Court
14:00
Speaker 1: has ruled is legitimate political expression protected by the Constitution.
14:05
Speaker 1: But within two hours of Trump signing the executive order,
14:09
Speaker 1: Jay Carrey, a US Army veteran, burned an American flag
14:13
Speaker 1: outside the White House in protest.
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Speaker 4: I'm burning this flag as the progress that illegal fact
14:22
Speaker 4: that president that sits in that house.
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Speaker 1: Carrie told Fox News he's ready to fight any federal
14:28
Speaker 1: charges in court.
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Speaker 6: It wasn't a matter of a disrespecting the flag. I'm
14:31
Speaker 6: a veteran. I fought under that flag with that fight
14:33
Speaker 6: for that flag is a matter of protesting against what
14:36
Speaker 6: the President was putting out in an executive order because
14:39
Speaker 6: he feels he can do anything that he wants, and
14:41
Speaker 6: that's just not the case.
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Speaker 1: I've been talking to Professor David Cole of Georgetown Law,
14:46
Speaker 1: who represented the men who burned flags in the two
14:49
Speaker 1: leading Supreme Court cases. A combat veteran burned a flag
14:54
Speaker 1: outside the White House on Monday in protest of Trump's
14:58
Speaker 1: executive order targeting flag burning. He was detained by Secret
15:03
Speaker 1: Service for igniting an object, then turned over the US
15:07
Speaker 1: Park Police and arrested. He was issued too citations, not
15:11
Speaker 1: for burning the flag, but for setting a fire in
15:14
Speaker 1: an unsecured place and for damaging park property. Does he
15:18
Speaker 1: have a defense that he's being selectively prosecuted or is
15:23
Speaker 1: that a straightforward citation?
15:26
Speaker 5: So I think in the absence of Trump's executive order,
15:30
Speaker 5: it would be a straightforward citation. That is, of course,
15:33
Speaker 5: the federal government is permitted to ban burning things on
15:36
Speaker 5: federal property, and it can ban burning flags along with
15:40
Speaker 5: burning leaves or anything else on federal property, and that
15:44
Speaker 5: wouldn't raise a serious First Amendment objection even if someone
15:48
Speaker 5: burned a flag for protest. But now that Trump has
15:51
Speaker 5: issued this executive order and basically announced I'm as the
15:56
Speaker 5: President United States, I am directing the Justice Department to
16:00
Speaker 5: prosecute flagburners. Why because flagburning expresses an offensive message that
16:07
Speaker 5: essentially gives this protester evidence of selective prosecution. He can
16:13
Speaker 5: introduce as exhibit A in his defense the fact that
16:16
Speaker 5: the President announced the day before he was arrested that
16:21
Speaker 5: the government would target people who burn flags using other laws,
16:26
Speaker 5: but doing so because the President disapproves of the message
16:31
Speaker 5: that is sent. And so he now has a defense
16:34
Speaker 5: that he wouldn't have had had the President not issued
16:37
Speaker 5: that executive.
16:38
Speaker 1: Order and the Army veteran Carrie said he wants the
16:41
Speaker 1: DCUs attorney to bring federal charges. He welcomes the challenge,
16:46
Speaker 1: and he's already got a lawyer. Do you think that
16:49
Speaker 1: what's going to happen is so we'll have a few
16:51
Speaker 1: cases like this, there'll be appealed, it'll just get caught
16:56
Speaker 1: up in appeals, and maybe the Supreme Court won't even
16:58
Speaker 1: take the case.
17:00
Speaker 5: Yeah. I don't think the Supreme Court has any interest
17:03
Speaker 5: in particular in revisiting Texas versus Johnson. It is, as
17:07
Speaker 5: I said before, one of the central precedents in the
17:12
Speaker 5: entire First Amendment. Lexicon has been cited and cited and
17:17
Speaker 5: cited by the Supreme Court, you know, in many many
17:20
Speaker 5: other cases, because it stands for such a core proposition
17:24
Speaker 5: of the First Amendment. And so I don't think these
17:27
Speaker 5: kind of marginal cases like this one where someone violated
17:31
Speaker 5: a neutral rule. But there's an argument that he was
17:34
Speaker 5: selectively prosecuted for that violation. Are going to present the
17:39
Speaker 5: question of whether the court should overturn Texas versus Johnson
17:43
Speaker 5: in the first place, And were that question presented, I
17:46
Speaker 5: would be shocked if this Supreme Court agreed as.
17:50
Speaker 1: Far as any possible penalty for any possible charges, Trump said,
17:55
Speaker 1: you get one year in jail, no early exits, know nothing.
17:59
Speaker 1: Do you know where that one year came from? Because
18:02
Speaker 1: I don't even think it's in the executive order.
18:05
Speaker 4: No.
18:05
Speaker 5: He has a big mouth, very little understanding of the law,
18:09
Speaker 5: but no legal authority to dictate what penalties people pay
18:15
Speaker 5: for violating legitimate laws, and no authority whatsoever to say
18:20
Speaker 5: that people should pay penalties for violating illegitimate laws, like
18:24
Speaker 5: laws that ban flag burning.
18:26
Speaker 1: There's also a provision that threatens to deny or revoke
18:30
Speaker 1: visas and other immigration benefits to non citizens who burn flags.
18:36
Speaker 1: They're expanding every day, it seems the ways to revoke visas.
18:42
Speaker 1: Does that have any basis in law?
18:45
Speaker 5: It has no basis in law for two reasons. First
18:48
Speaker 5: of all, the First Amendment protects all of us within
18:52
Speaker 5: the United States. It protects citizens and non citizens alike.
18:55
Speaker 5: It protects the freedom of speech regardless of who the
18:58
Speaker 5: speaker is, protects corporations, and so it also protects foreign nationals.
19:03
Speaker 5: And so if there were an immigration statute that said
19:07
Speaker 5: you could be deported for burning an American flag, it
19:10
Speaker 5: would be unconstitutional for the very same reasons that the
19:14
Speaker 5: Federal Flag Protection Act was deemed unconstitutional. But in addition,
19:19
Speaker 5: there are no such laws. There is no immigration statute
19:23
Speaker 5: that says we can deny of visa or port someone
19:26
Speaker 5: because they burn an American flag. So there's no statutory
19:30
Speaker 5: authority to do so, and there's no constitutional authority to
19:32
Speaker 5: do so. President Trump is seeking to chill the free
19:36
Speaker 5: exercise of First Amendment rights by citizens and non citizens
19:40
Speaker 5: alike through this executive order, but he doesn't have the
19:44
Speaker 5: authority to actually follow through on the threat.
19:48
Speaker 1: David, have there been cases where in recent history since
19:52
Speaker 1: the Supreme Court's rulings where people were prosecuted for burning flags.
19:57
Speaker 5: The decisions in Johnson and Aikman essentially put the issue
20:01
Speaker 5: to rest. There was one instant actually involving Gregory Johnson,
20:06
Speaker 5: who burned a flag in Cleveland, I believe, outside of
20:09
Speaker 5: another convention. I can't remember which party's Convention, it was,
20:13
Speaker 5: and he was prosecuted again under a neutral law that
20:18
Speaker 5: banned burning of anything in public. His case was ultimately dismissed.
20:22
Speaker 5: But no, there are not flag burning prosecutions because it
20:26
Speaker 5: is so clear that flag burning is protected. And indeed,
20:31
Speaker 5: you know, to some degree, the fact that flag burning
20:34
Speaker 5: is protected, I think has reduced people's sort of incentive
20:40
Speaker 5: to burn flags in the first place. I remember when
20:42
Speaker 5: the question of whether there ought to be a constitutional
20:44
Speaker 5: amendment that sort of excised flag burning from the first
20:48
Speaker 5: Amendment was on the table in New York, a New
20:51
Speaker 5: York state legislature voted against amending the constitution, and he said,
20:56
Speaker 5: you know, if I want my kids to stick broccoli
20:59
Speaker 5: up their notes, the best way I can, you know,
21:02
Speaker 5: effectuate that is by saying, whatever you do, don't stick
21:06
Speaker 5: broccoli up your notes. So, you know, once it became
21:10
Speaker 5: clear that the state has no authority to criminalize flag burning,
21:15
Speaker 5: you know, sort of flag burning kind of lost some
21:17
Speaker 5: of the oomph that it had, and so you just
21:20
Speaker 5: haven't seen that much flag burning since the Supreme Court's decision.
21:24
Speaker 5: And I think what you saw, you know, the day
21:27
Speaker 5: that President Trump issued his order is that the new
21:30
Speaker 5: York legislator was right. It's only because Trump issued that
21:34
Speaker 5: executive order that the veteran then went and burned the
21:37
Speaker 5: flag because he was angered that the president was seeking
21:41
Speaker 5: to tell him he couldn't do something that he thought
21:44
Speaker 5: he had the right to do.
21:46
Speaker 1: Interesting to see if anything happens or if those charges
21:49
Speaker 1: just end up being dismissed. Thanks so much, David. That's
21:53
Speaker 1: Professor David Call of Georgetown Law. And that's it for
21:57
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