Trump flag burning executive order could flip First Amendment on its head with new court

President Donald Trump and his administration are likely set to challenge a Supreme Court ruling that protected the burning of the American flag under the First Amendment with a new executive order calling for those who desecrate the U S flag while inciting violence or urgent other laws to face prosecution The executive order which Trump signed Monday morning directs the attorney general to prosecute those who violate laws in methods that involve desecrating the flag and to pursue litigation that would clarify the scope of the First Amendment as it relates to flag desecration Burning the American flag however already has been litigated with the Supreme Court ruling in that burning the flag is a form of symbolic speech that is protected by the First Amendment I think what the president is saying is that he's ordering Attorney General Pam Bondi Justice Department lawyers to prosecute those who maliciously burn an American flag senior legal fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies described Fox News Digital Monday And what that would essentially do is tee up a challenge eventually for the Supreme Court to revisit and potentially overturn its prior precedent saying that burning an American flag is protected speech TRUMP TO CRACK DOWN ON FLAG BURNING DESECRATION WITH EXECUTIVE ORDERThe incident was centered on political protester Gregory Lee Johnson who burned the American flag in outside the Republican National Convention in Dallas in protest of President Ronald Reagan's re-election America the red white and blue we spit on you protesters chanted as Johnson lit the flag on fire according to details in the development called Texas v Johnson Johnson was charged under the Texas Venerated Objects Statute a state law that prevented individuals from vandalizing respected objects such as the U S flag Johnson was discovered guilty in and sentenced to one year behind bars and a fine but appealed the ruling The Supreme Court agreed to hear the affair in with the nation's highest court ruling in a decision that burning the American flag was protected speech under the First Amendment The Supreme Court held a conservative majority at the time TRUMP'S RENEWED CALLS TO JAIL AMERICAN FLAG BURNERS CLASHES WITH COURT PRECEDENTJustice William J Brennan a Democrat nominated by former President Dwight Eisenhower issued the majority opinion and argued that the ruling body may not prohibit the expression of an idea just because society finds the idea itself offensive or disagreeable We can imagine no more appropriate response to burning a flag than waving one's own no better way to counter a flag-burner's message than by saluting the flag that burns no surer means of preserving the dignity even of the flag that burned than by as one witness here did according its remains a respectful burial the majority opinion read We do not consecrate the flag by punishing its desecration for in doing so we dilute the freedom that this cherished emblem represent Justices Thurgood Marshall Harry A Blackmun Antonin Scalia and Anthony M Kennedy joined Brennan in the majority opinion Chief Justice Rehnquist authored the court's dissenting opinion arguing that the American flag holds a unique status in the U S that should protect it from acts such as burning In the Supreme Court reaffirmed its ruling the year prior while invalidating Congress' Flag Protection Act of which lawmakers passed in response to the Supreme Court's Texas v Johnson ruling Trump's Monday executive order calls on the attorney general specifically to launch legal efforts to clarify the scope of the First Amendment TRUMP VOWS CONSEQUENCES FOR 'ANIMALS' BURNING AMERICAN FLAGS IN LA SLAMS THOSE WAVING OTHER COUNTRIES' FLAGSThe executive order states To the maximum extent permitted by the Constitution the Attorney General shall vigorously prosecute those who violate our laws in techniques that involve desecrating the American Flag and may pursue litigation to clarify the scope of the First Amendment exceptions in this area Back in current Justice Clarence Thomas provided particular insight into where he stands with the burning of venerated objects offering a dissenting opinion in the incident Virginia v Black on the burning of crosses Thomas cited Rehnquist s dissenting opinion in the Texas v Johnson circumstance in his dissenting opinion on cross-burning In every beliefs certain things acquire meaning well beyond what outsiders can comprehend That goes for both the sacred see Texas v Johnson U S - REHNQUIST C J dissenting describing the unique position of the American flag in our Nation's years of history and the profane I believe that cross burning is the paradigmatic example of the latter he wrote in Smith pointed to two dynamics to watch out for with regard to a possible flag-burning affair landing on Supreme Court's docket in the future that selected justices have expressed particular concern that potentially expressive conduct has been read too broadly and how the justices will apply stare decisis which is legal doctrine outlining courts should follow established precedents such as the ruling I think a couple of things are happening here he explained I think several justices have expressed specific concern that potentially expressive conduct has been read too broadly Things that are really conduct not speech have been read to be protected and maybe they should not be protected as protected as they have been in the past TRUMP SIGNS EXECUTIVE ORDERS TO ELIMINATE NO-CASH BAIL FOR ACCUSED IN DC AND NATIONWIDE The other fascinating dynamic I think that you should watch for is how certain justices will apply what's known as stare decisis and essentially that's the fancy Latin term It means that 'they decided Smith continued Several times of late Chief Justice Roberts in particular has mentioned that even though he disagrees on the merits with the decision the Supreme Court is reaching he has joined the majority anyway because he believes stare decisis should apply and the court should not overturn or revisit its previous decisions in this area Even though he may subsequently disagree with it Trump celebrated the executive order during the Monday signing ceremony in the Oval Office saying the Supreme Court ruling protecting flag burning was made by a very sad court Flag burning All over the country they're burning flags All over the world they burn the American flag he revealed And as you know through a very sad court I guess there was a to decision They called it freedom of speech But there's another reason which is perhaps much more fundamental he disclosed It's called death Because what happens when you burn a flag is the area goes crazy If you have hundreds of people they go crazy You could do other things You can burn this piece of paper he disclosed But when you burn the American flag it incites riots at levels that we've never seen before First Amendment groups such as the Foundation for Individual Rights and Expression slammed the executive order in comment provided to Fox News Digital saying Trump does not have the power to revise the First Amendment with the stroke of a pen Flag burning as a form of political protest is protected by the First Amendment Foundation for Individual Rights and Expression Chief Counsel Bob Corn-Revere noted in Monday comment That s nothing new While people can be prosecuted for burning anything in a place they aren t allowed to set fires the executive can t prosecute protected expressive activity even if various Americans including the president find it uniquely offensive and provocative