JANE DOE, YAKIMA
‘Jane Doe’ is a legal term generally used as the name of an unknown party or person who wishes to remain anonymous. These articles are not legal advice. They are simplified analyses of sometimes complex legal issues.
Monday, August 25, DJT signed an executive order directing the Department of Justice to refer instances of flag burning for prosecution to the full extent of existing laws. The order suggests flag burning could be prosecuted under unlawful burning, disorderly conduct or destruction of property to get around the first amendment. At his press conference, DJT said, “If you burn a flag, you will get one year in jail, no early exits, no nothing.” As usual, this administration acts before thinking or, if the law is considered at all, its interpretation is strained at best and wrong most often. This article explains why many legal analysts believe the order is unconstitutional and, at least, under current law, why it is unlikely to survive judicial review. Pursuant to the Constitutional provisions concerning ‘checks and balances’, Congress creates law, not the Executive Branch. The President may not by decree or otherwise create a crime that does not exist. The order is just short of doing that. DJT’s speech appears to direct it, however. Once a law is on the books, the President may direct the DOJ to pursue certain crimes or refer them for prosecution. However, his own words indicate his true intent, which is to create a new crime. Assuming the constitutionality of this executive order is challenged in court, DJT’s words may undermine the order’s attempt to be legal. In other words, the actual language of the decree is a smokescreen for an unconstitutional administrative action that punishes speech protected by the First Amendment. In 1989, in Texas v. Johnson, the United States Supreme Court ruled that flag burning isa legitimate expression of communication (symbolic speech) protected by the Free Speech provision of the First Amendment. Justice Scalia voted with the majority. In the same year Congress passed a bill criminalizing flag burning. That law was struck down in 1990.In anticipation of a legal challenge under the First Amendment, DJT seems to be trying to make an end run around that protection by arguing that flag burning is an incitement to violence which is not protected speech. The burden to establish that is high.
In Brandenburg v. Ohio, the issue before the Supreme Court was under what circumstances speech is unprotected because it incites violence. Brandenburg, a member of the KKK, was prosecuted in Ohio pursuant to its Criminal Syndication law. The court found the law was unconstitutional because although there was advocacy of violence there was no proof it would lead to imminent lawless action. The court applied a two-part analysis to determine whether the challenged speech was protected. In our present situation, the speaker (or in this case theflag burner) must intend the act to incite or produce such violence. Then, the act must also be likely to incite or produce such action. The fact that the burning of the flag may create an angry emotional response is surely less likely to incite violence than the screaming hate speech of a Ku Klux Klan member. DJT is trying to avoid being shut down by claiming flag burning causes “people to go crazy and get violent and riot”. However, there must be proof not mere generalizations and claims with no factual basis will fail. The Supreme Court has not looked at flag burning in the context of inciting violence. The administration is most likely hoping to set up a test case to bring the issue before his conservative Justices. So, if DJT’s executive order is upheld, the Supreme Court will have to reverse itself. In addition, Congress will have to throw in the towel and give him what he wants.
Stranger things have happened. Recently.
