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Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.

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Speaker 2: And what the penalty is going to be. If you

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Speaker 2: burn a flag, you get one year in jail, no

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Speaker 2: early exits, no nothing. You get one year in jail.

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Speaker 2: If you're burn a flag, you get And what it

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Speaker 2: does is insight to write it.

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Speaker 1: President Trump signed an executive order on Monday directing the

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Speaker 1: US Attorney General to prosecute people for burning the American flag.

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Speaker 1: But flag burning is protected under the First Amendment under

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Speaker 1: well settled Supreme Court precedence. In fact, none other than

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Speaker 1: the late Justice antonin Scalia, a conservative icon, was part

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Speaker 1: of the majority in the nineteen eighty nine case that

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Speaker 1: established that the Constitution protects burning the flag as a

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Speaker 1: form of symbolic speech.

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Speaker 3: Yeah, if I were king, I would not allow people

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Speaker 3: to go about bernie the American flag. However, we have

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Speaker 3: a First Amendment which says that the right of free

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Speaker 3: speech shall not be abridged, and it is addressed in

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Speaker 3: particular to speech critical of the government. I mean that

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Speaker 3: was the main kind of speech that tyrants would seek

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Speaker 3: to suppress. Burning the flag is a form of expression.

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Speaker 3: Speech doesn't just mean written words or oral words. It

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Speaker 3: could be semaphore. Burning a flag is a symbol that

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Speaker 3: expresses an idea. I hate the government, the government is

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Speaker 3: unjust whatever.

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Speaker 1: Trump call the justices who made that decision a quote

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Speaker 1: very sad court. And the order directs the Attorney General

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Speaker 1: to pursue litigation to challenge that nineteen eighty nine President.

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Speaker 2: You get one year in jail, and it goes on

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Speaker 2: your record and you will see flag burning sapping immediately.

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Speaker 1: But just two hours later, a combat veteran burned an

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Speaker 1: American flag across the street from the White House to

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Speaker 1: protest the executive order targeting flagburning.

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Speaker 4: I'm burning it flag at the progress that illegal statics, President,

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Speaker 4: that's in that house.

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Speaker 1: My guest is David Cole, a professor at Georgetown Law.

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Speaker 1: He represented the men who burned the flags in the

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Speaker 1: two leading Supreme Court cases. David, there's a long history

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Speaker 1: in this country of desecrating or burning the flag as

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Speaker 1: a form of political protest. That goes back to the

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Speaker 1: Civil War. But states and even Congress have passed laws

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Speaker 1: to prevent flag burning. Tell us about the Seminole case

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Speaker 1: the Supreme Court decided in nineteen eighty nine, where you

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Speaker 1: represented Gregory Lee Johnson.

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Speaker 5: Sure so. Gregory Johnson burned an American flag in Dallas, Texas,

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Speaker 5: in a protest outside of the Republican National Convention that year,

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Speaker 5: and was skeetered under a Texas statute that made it

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Speaker 5: a crime to burn the flag in a way that

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Speaker 5: would deeply offend onlookers. He was convicted in the trial court.

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Speaker 5: That conviction was overturned by the highest court in Texas,

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Speaker 5: but Texas took the case up to the Supreme Court,

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Speaker 5: and the Supreme Court in Texas versus Johnson, ruled that

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Speaker 5: the government may not criminalize expression through the burning of

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Speaker 5: a flag simply because people find that message offensive.

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Speaker 1: It was a five to four decision, but it didn't

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Speaker 1: divide the court down ideological lines. In fact, conservative icon

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Speaker 1: Justice Antonin Scalia was in the majority. Why do you

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Speaker 1: think it didn't go down ideological lines?

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Speaker 5: So that's a great question. We won the case with

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Speaker 5: the votes of two Republican appointees, Justice Kennedy and Justice Scalia.

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Speaker 5: Both of them, I think, you know, over time, showed

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Speaker 5: themselves to be committed to the First Amendment. Justice Stevens

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Speaker 5: also a committed First Amendment to Justice dissented, I think

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Speaker 5: in his case, it came down to the fact that

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Speaker 5: he was a veteran. He was a veteran of World

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Speaker 5: War Two. He clearly was deeply offended by the very

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Speaker 5: practice of burning the flag and therefore dissented. But over time,

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Speaker 5: I think, you know, if you look back at the

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Speaker 5: cases that preceded Texas serviss Johnson, many justices, including liberal justices,

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Speaker 5: expressed some reservation about whether or not flag burning should

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Speaker 5: be protected by the First Amendment. So it's not something

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Speaker 5: that has divided the country along partisan lines, and will you.

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Speaker 1: Explain the thinking of the justices in the majority and

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Speaker 1: in the discent.

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Speaker 5: So the majority held that the justification for throwing someone

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Speaker 5: in jail for burning the flag is that the message

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Speaker 5: sent by engaging in that conduct is offensive. And the

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Speaker 5: court held that under the First Amendment, the government has

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Speaker 5: to maintain neutrality in the field of expression. Can't punish

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Speaker 5: speech simply because it or a majority of people find

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Speaker 5: a particular message to be offensive. Once you go down

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Speaker 5: that road, virtually anything can be prohibited by the government

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Speaker 5: because one man's offense is another man's truth. The dissent argued, well,

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Speaker 5: this is really not so essential a form of expression.

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Speaker 5: Chief Justice Rank was called flag burning quote an inarticulate grunt,

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Speaker 5: And there's a very powerful interest in preserving the unity

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Speaker 5: that the symbol expresses, and therefore states should be permitted

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Speaker 5: to prescribe how people can use the flag. They can

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Speaker 5: waive it, but they can't burn it.

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Speaker 1: One year later, Congress passed a law criminalizing burning the

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Speaker 1: American flag, and in another case where you represented the defendant,

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Speaker 1: the Supreme Court struck down that law right.

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Speaker 5: This case was called the United States versus Iikmen, and

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Speaker 5: it basically stemmed from Congress's response to Texas versus Johnson.

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Speaker 5: The Johnson decision came down, as controversial decisions often do,

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Speaker 5: right before the fourth of July. Congress decided in its

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Speaker 5: wisdom to stay in session rather than go out for

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Speaker 5: the fourth of July recess, so that virtually every member

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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.

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Speaker 5: And then Congress proceeded in the following year to amend

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Speaker 5: federal law to prohibit flag burning and purportedly to avoid

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Speaker 5: the particular problems that the Texas statute that the Court

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Speaker 5: had struck down in Texas versus Johnson had So you

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Speaker 5: had Democrats and Republicans alike voting in favor of the

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Speaker 5: Federal Flag Protection Act and maintaining that notwithstanding with the

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Speaker 5: Supreme Court said in Diagnos missus Johnson, it should be

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Speaker 5: a crime to burn the American flag. And that law

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Speaker 5: was violated the day it took effect in two cases,

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Speaker 5: and I was counsel for the defendants in both of

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Speaker 5: those cases. That went right up to the Supreme Court

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Speaker 5: the following year, and the Court essentially said, we meant

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Speaker 5: what we said a year ago. The only justification for

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Speaker 5: prohibiting the burning of an American flag is the message

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Speaker 5: that it sends. That that message is deemed defensive by people.

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Speaker 5: The fact that speech is deemed defensive by people is

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Speaker 5: not a justification for throwing people in jail. It's, in fact,

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Speaker 5: a justification for protecting that speech. And so the Court

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Speaker 5: struck down the Federal Flag Protection Act on the same

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Speaker 5: five to four vote.

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Speaker 1: So President Trump is also with this executive order calling

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Speaker 1: for Attorney General Pam Bondy to pursue litigation to challenge

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Speaker 1: the Supreme Court's ruling. In nineteen eighty nine, this Supreme

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Speaker 1: Court is very different from that Supreme Court. Do you

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Speaker 1: think that they would still uphold the president.

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Speaker 5: Yes, this court is different from the court from nineteen

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Speaker 5: eighty nine to nineteen ninety. But this is, if anything,

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Speaker 5: an even stronger pro First Amendment court, and Texas versus

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Speaker 5: Johnson is not just the kind of one off. It

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Speaker 5: is cited again and again and again for this basic premise,

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Speaker 5: probably the most fundamental premise of pre speech law, which

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Speaker 5: is the fact that speech offends somebody is not a

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Speaker 5: justification for the government to throw the speaker in jail.

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Speaker 5: And that's ultimately what punishing flag burners is about. It's

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Speaker 5: about throwing them in jail because we would be, you know,

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Speaker 5: very pleased if they waive the flag. We are very

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Speaker 5: upset if they burn the flag. But either way, you

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Speaker 5: are using the flag to express a message, and the

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Speaker 5: government is not allowed to tell us what messages we

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Speaker 5: can and cannot express through symbolic speech or otherwise.

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Speaker 1: Now, Trump's executive order doesn't direct the Attorney General to

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Speaker 1: prosecute those who burn flags for the flag burning itself,

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Speaker 1: but it says the Justice Department should bring cases quote

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Speaker 1: against acts of American flag desecration that violate applicable content

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Speaker 1: neutral laws while causing harm unrelated to expression, consistent with

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Speaker 1: the First Amendment. So the cases are going to be

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Speaker 1: limited to those where there's a violation of other laws.

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Speaker 5: So this executive order is, I suppose, as befitting something

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Speaker 5: that is ultimately about symbols, almost entirely symbolic, because it acknowledges,

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Speaker 5: as it must, that the Supreme Court has decisively ruled

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Speaker 5: that you can't punish someone for burning a flag. And

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Speaker 5: what it does it says, well, there may be some

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Speaker 5: circumstances in which one could where the reason you're engaged

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Speaker 5: in the prosecution is not the burning of the flag

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Speaker 5: per se, but some other interest altogether. So, for example,

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Speaker 5: many towns and cities prohibit burning of anything in public

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Speaker 5: without a permit. You can't burn leaves, you can't burn

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Speaker 5: wood in public without a permit. That law can be

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Speaker 5: applied to the burning of an American flag because the

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Speaker 5: law is not about speech, it's not about what burning

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Speaker 5: a flag communicates. It's an environmental law or fire safety

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Speaker 5: law that is neutral as to speech. And it's long

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Speaker 5: been the case that that kind of law. In fact,

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Speaker 5: the Supreme Court is said that kind of law would

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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

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Speaker 5: constituted incitement to imminent wawless action or fighting words, those

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Speaker 5: are not protected by the First Amendment. Even pure speech,

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Speaker 5: if it constitutes incitement to emminent wallless action or fighting words,

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Speaker 5: is not protected by the First Amendment. So if flag

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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,

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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

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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,

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Speaker 5: and that the Supreme Court is held is an impermissible

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Speaker 5: justification for targeting any form of speech. So, yeah, if

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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

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Speaker 5: is steeled to action to engage in illegal conduct. Well, sure,

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Speaker 5: just as you could criminalize that person from raising his

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Speaker 5: hand to incite that lawless action, you could penalize burning

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Speaker 5: a flag if it's being used for that purpose. But

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Speaker 5: it's really a null set And so I think at

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Speaker 5: the end of the day, Trump's executive order is itself

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Speaker 5: a kind of a nullity. It's a political act. It's

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Speaker 5: not going to have any real world effects, and it's

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Speaker 5: essentially theater engaged in by the President because it's good politics.

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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

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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

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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

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Speaker 1: professor David Cole did Trump just give the veteran who

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Speaker 1: burned the American flag outside the White House a defense?

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Speaker 1: This is Bloomberg. President Donald Trump signed an executive order

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Speaker 1: on Monday requiring the Justice Department to investigate and prosecute

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Speaker 1: people for burning the American flag, something the Supreme Court

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Speaker 1: has ruled is legitimate political expression protected by the Constitution.

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Speaker 1: But within two hours of Trump signing the executive order,

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Speaker 1: Jay Carrey, a US Army veteran, burned an American flag

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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

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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

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Speaker 1: charges in court.

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Speaker 6: It wasn't a matter of a disrespecting the flag. I'm

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Speaker 6: a veteran. I fought under that flag with that fight

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Speaker 6: for that flag is a matter of protesting against what

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Speaker 6: the President was putting out in an executive order because

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Speaker 6: he feels he can do anything that he wants, and

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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,

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Speaker 1: who represented the men who burned flags in the two

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Speaker 1: leading Supreme Court cases. A combat veteran burned a flag

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Speaker 1: outside the White House on Monday in protest of Trump's

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Speaker 1: executive order targeting flag burning. He was detained by Secret

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Speaker 1: Service for igniting an object, then turned over the US

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Speaker 1: Park Police and arrested. He was issued too citations, not

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Speaker 1: for burning the flag, but for setting a fire in

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Speaker 1: an unsecured place and for damaging park property. Does he

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Speaker 1: have a defense that he's being selectively prosecuted or is

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Speaker 1: that a straightforward citation?

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Speaker 5: So I think in the absence of Trump's executive order,

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Speaker 5: it would be a straightforward citation. That is, of course,

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Speaker 5: the federal government is permitted to ban burning things on

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Speaker 5: federal property, and it can ban burning flags along with

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Speaker 5: burning leaves or anything else on federal property, and that

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Speaker 5: wouldn't raise a serious First Amendment objection even if someone

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Speaker 5: burned a flag for protest. But now that Trump has

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Speaker 5: issued this executive order and basically announced I'm as the

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Speaker 5: President United States, I am directing the Justice Department to

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Speaker 5: prosecute flagburners. Why because flagburning expresses an offensive message that

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Speaker 5: essentially gives this protester evidence of selective prosecution. He can

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Speaker 5: introduce as exhibit A in his defense the fact that

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Speaker 5: the President announced the day before he was arrested that

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Speaker 5: the government would target people who burn flags using other laws,

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Speaker 5: but doing so because the President disapproves of the message

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Speaker 5: that is sent. And so he now has a defense

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Speaker 5: that he wouldn't have had had the President not issued

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Speaker 5: that executive.

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Speaker 1: Order and the Army veteran Carrie said he wants the

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Speaker 1: DCUs attorney to bring federal charges. He welcomes the challenge,

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Speaker 1: and he's already got a lawyer. Do you think that

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Speaker 1: what's going to happen is so we'll have a few

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Speaker 1: cases like this, there'll be appealed, it'll just get caught

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Speaker 1: up in appeals, and maybe the Supreme Court won't even

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Speaker 1: take the case.

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Speaker 5: Yeah. I don't think the Supreme Court has any interest

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Speaker 5: in particular in revisiting Texas versus Johnson. It is, as

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Speaker 5: I said before, one of the central precedents in the

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Speaker 5: entire First Amendment. Lexicon has been cited and cited and

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Speaker 5: cited by the Supreme Court, you know, in many many

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Speaker 5: other cases, because it stands for such a core proposition

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Speaker 5: of the First Amendment. And so I don't think these

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Speaker 5: kind of marginal cases like this one where someone violated

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Speaker 5: a neutral rule. But there's an argument that he was

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Speaker 5: selectively prosecuted for that violation. Are going to present the

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Speaker 5: question of whether the court should overturn Texas versus Johnson

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Speaker 5: in the first place, And were that question presented, I

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Speaker 5: would be shocked if this Supreme Court agreed as.

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Speaker 1: Far as any possible penalty for any possible charges, Trump said,

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Speaker 1: you get one year in jail, no early exits, know nothing.

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Speaker 1: Do you know where that one year came from? Because

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Speaker 1: I don't even think it's in the executive order.

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Speaker 4: No.

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Speaker 5: He has a big mouth, very little understanding of the law,

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Speaker 5: but no legal authority to dictate what penalties people pay

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Speaker 5: for violating legitimate laws, and no authority whatsoever to say

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Speaker 5: that people should pay penalties for violating illegitimate laws, like

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Speaker 5: laws that ban flag burning.

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Speaker 1: There's also a provision that threatens to deny or revoke

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Speaker 1: visas and other immigration benefits to non citizens who burn flags.

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Speaker 1: They're expanding every day, it seems the ways to revoke visas.

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Speaker 1: Does that have any basis in law?

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Speaker 5: It has no basis in law for two reasons. First

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Speaker 5: of all, the First Amendment protects all of us within

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Speaker 5: the United States. It protects citizens and non citizens alike.

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Speaker 5: It protects the freedom of speech regardless of who the

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Speaker 5: speaker is, protects corporations, and so it also protects foreign nationals.

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Speaker 5: And so if there were an immigration statute that said

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Speaker 5: you could be deported for burning an American flag, it

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Speaker 5: would be unconstitutional for the very same reasons that the

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Speaker 5: Federal Flag Protection Act was deemed unconstitutional. But in addition,

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Speaker 5: there are no such laws. There is no immigration statute

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Speaker 5: that says we can deny of visa or port someone

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Speaker 5: because they burn an American flag. So there's no statutory

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Speaker 5: authority to do so, and there's no constitutional authority to

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Speaker 5: do so. President Trump is seeking to chill the free

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Speaker 5: exercise of First Amendment rights by citizens and non citizens

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Speaker 5: alike through this executive order, but he doesn't have the

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Speaker 5: authority to actually follow through on the threat.

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Speaker 1: David, have there been cases where in recent history since

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Speaker 1: the Supreme Court's rulings where people were prosecuted for burning flags.

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Speaker 5: The decisions in Johnson and Aikman essentially put the issue

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Speaker 5: to rest. There was one instant actually involving Gregory Johnson,

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Speaker 5: who burned a flag in Cleveland, I believe, outside of

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Speaker 5: another convention. I can't remember which party's Convention, it was,

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Speaker 5: and he was prosecuted again under a neutral law that

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Speaker 5: banned burning of anything in public. His case was ultimately dismissed.

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Speaker 5: But no, there are not flag burning prosecutions because it

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Speaker 5: is so clear that flag burning is protected. And indeed,

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Speaker 5: you know, to some degree, the fact that flag burning

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Speaker 5: is protected, I think has reduced people's sort of incentive

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Speaker 5: to burn flags in the first place. I remember when

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Speaker 5: the question of whether there ought to be a constitutional

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Speaker 5: amendment that sort of excised flag burning from the first

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Speaker 5: Amendment was on the table in New York, a New

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Speaker 5: York state legislature voted against amending the constitution, and he said,

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Speaker 5: you know, if I want my kids to stick broccoli

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Speaker 5: up their notes, the best way I can, you know,

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Speaker 5: effectuate that is by saying, whatever you do, don't stick

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Speaker 5: broccoli up your notes. So, you know, once it became

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Speaker 5: clear that the state has no authority to criminalize flag burning,

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Speaker 5: you know, sort of flag burning kind of lost some

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Speaker 5: of the oomph that it had, and so you just

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Speaker 5: haven't seen that much flag burning since the Supreme Court's decision.

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Speaker 5: And I think what you saw, you know, the day

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Speaker 5: that President Trump issued his order is that the new

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Speaker 5: York legislator was right. It's only because Trump issued that

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Speaker 5: executive order that the veteran then went and burned the

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Speaker 5: flag because he was angered that the president was seeking

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Speaker 5: to tell him he couldn't do something that he thought

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Speaker 5: he had the right to do.

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Speaker 1: Interesting to see if anything happens or if those charges

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Speaker 1: just end up being dismissed. Thanks so much, David. That's

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Speaker 1: Professor David Call of Georgetown Law. And that's it for

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Speaker 1: this edition of The Bloomberg Law Show. Remember you can

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