Flag Burning

Next time, read the EO before getting all excited

Here are a couple of headlines I found by googling “trump flag burning”:

Some people are horrified, and other people are ecstatic. But it seems that very few people have bothered to read the actual executive order.

Look, if he was really able to make flag burning illegal, and went ahead and did it, neither of which is the case, I’d be roaring mad. Even madder than I am about him nationalizing 10% of Intel (that’s the technical term for government ownership of a company).

But he doesn’t have the ability to make flag burning illegal. And the executive order doesn’t attempt to do so. It treads a fine line, but it doesn’t fall off that line.

This is in the first paragraph, where he’s justifying his action:

Desecrating it 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. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

Is there any part of this that is untrue? No, it doesn’t justify violating the First Amendment, but it’s true.

Here’s Section 2a. Section 2 is measures to be taken. This is the first part of those:

The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, 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.

It’s limited to things that are “consistent with the First Amendment”. It means that if some numbnut goes out on his lawn and burns the American flag, no one can do a thing about it. I mean, if it’s plastic, and it gives off fumes, then they can, but not as an infringement of free speech.

What we have here is something that the left lacks, and claims that Trump lacks. Nuance. On one side, there are people who simply want to ban flag burning. They’re so offended by it, they want it to be illegal. Sort of like people on the left want certain kinds of speech made illegal because it offends them. Thankfully, the Constitution doesn’t allow that.

On the other side, we have people who actually get a frisson of pleasure from seeing the American flag being burned. Even if they themselves wouldn’t have the stones to go out and do it, it makes them feel all warm and fuzzy to see an action being taken against the Great Satan. Particularly one that the Great Satan is powerless to stop.

The people on those two extremes exhaust me. And it makes sense that each of them is reacting to this executive order as though Trump is actually making flag burning illegal.

Here’s Section 2b:

In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.

See my previous example of someone burning a plastic flag. This looks like an end run around the First Amendment, but it’s not. If someone can prove that the government (federal, state, local) is prosecuting someone for polluting the atmosphere by burning a US flag, but didn’t prosecute anyone for polluting the atmosphere by burning a PalNazi flag (for example), I imagine the case would get thrown out, because the only difference is a Constitutionally protected action. But unless that could be proven, this seems like a decent—and Constitutional—way to crack down on flag burning.

Section 2c instructs the US Attorney General to push this as close as possible to the First Amendment barrier, without crossing it.

To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.

People do this all the time. This is one of the ways in which laws are made. By testing the limits. More often than not, this strengthens those limits.

Section 2d specifically targets foreign nationals. Which, given the way in which foreign nationals have abused their status as guests, seems like a Very Good Thing.

The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.

And that’s pretty much that. The rest is legal stuff. Severability and the like. Nothing specifically addressing the content of the order.

Note: This does not create any laws. It directs the Federal authorities to push where possible, within the bounds of the US Constitution, against flag burning that pokes its head out from behind the First Amendment curtain.

Nuance, people. Respect and follow the First Amendment, and do what can be done under that stricture to push back against people who are using this protection as a shield that allows them to attack America. Seems like a win-win to me.