Green & Red Podcast Episode 417: Civil Rights Attorney Ron Kuby on Flag Burning — “This Executive Order Means Absolutely Nothing”

Date: September 8, 2025
Hosts: Bob Buzzanco & Scott Parkin
Guest: Ron Kuby, Criminal Defense & Civil Rights Lawyer

Episode Overview

This episode explores the renewed controversy over flag burning in the wake of a Trump executive order, with legal insights from renowned civil rights attorney Ron Kuby. The hosts and guest discuss the history and legal precedent of flag burning as protected speech, the symbolic (and toothless) nature of recent executive orders, and broader attacks on civil liberties in the Trump era. The conversation expands to include topics such as book banning, the distinction between state and private suppression of speech, the weaponization of anti-Semitism in public discourse, and the political climate in New York.

Kuby draws on personal experience (including his role in the original flag burning Supreme Court cases with William Kunstler) to debunk right-wing panic, demystify legal realities, and reflect on the challenges—and opportunities—in fighting back against repression today.

Key Discussion Points & Insights

1. Flag Burning & the Law: Historical Background ([00:38]–[12:35])

• Flag Burning Supreme Court Cases:

  • The original case, Texas v. Johnson, originated at the 1984 RNC in Dallas, where activist Joey Johnson burned a flag and was prosecuted under a Texas law.
  • The Supreme Court ruled (5-4) in 1989 that flag burning is protected speech under the First Amendment.
  • Congress, led by then-Senator Joe Biden, attempted to circumvent this with the Flag Protection Act (1989), but the law was again struck down by the Court.

  Notable Quote:
  “After those two decisions, it stopped being an issue in America...this is settled law.”
  — Ron Kuby ([04:44]–[10:21])

• William Kunstler’s Role:

  • Kunstler, Kuby’s mentor, argued these cases placing political expression at the center of the legal strategy, not just establishment free speech pieties:

  Notable Quote:
  “They did it in order to make, you know, a larger, more powerful point about, you know, God and man and law, as the prophet Dylan would say.”
  — Ron Kuby ([02:06])

2. Trump’s Executive Order: Reality vs. Symbolism ([10:23]–[15:30])

• Legal Toothlessness:

  • The new executive order gives the federal government no actual power to criminalize flag burning—it merely encourages state/local prosecution under content-neutral public safety laws.

  Notable Quote:
  “I can assure everybody that this executive order means absolutely nothing. It is utterly and totally without any operative legal effect.”
  — Ron Kuby ([11:16])

• Chilling Effect:

  • While legally meaningless, such orders create fear and confusion, feeding into a climate of authoritarianism and distraction from more pressing threats (immigration raids, student visas, environmental rollbacks).

• Real-World Example:

  • Recent arrest of a veteran protester who burned a flag at the White House was for “setting a fire in a public place,” not flag desecration—a sign the law remains unchanged.

3. Book Banning and the Current Wave of Culture War Attacks ([15:30]–[20:30])

• Comparison to Past Moral Panics:

  • Kuby draws parallels with the Reagan-era porn panic and Tipper Gore’s censorship of rap music, noting these typically lose steam.

  • However, the current convergence of censorship, book bans, and curriculum control is unprecedented in its breadth.

  Notable Quote:
  “If you take any one thing and ask, have we ever seen anything like it in the Post World War II era…yes, we’ve seen things like this. Have we ever seen all of these things together at the same time? No. No, we haven’t.”
  — Ron Kuby ([17:05])

• Academic Capitulation:

  • Professors are more fearful and passive now, even those with tenure—potentially more so than during McCarthyism.

  Notable Reference:
  Citing historian Ellen Schrecker: “She thinks this is worse than McCarthyism.” — [18:42]

4. State vs. Private Suppression: The Limits of the First Amendment ([20:30]–[25:58])

• Distinction in Power:

  • The First Amendment only protects against government suppression, not actions by private institutions.

  • For example, if universities fire students or faculty for speech, they’re typically acting as private actors (or under government pressure).

  Notable Quote:
  “When private companies decide you are no longer worthy of their brand or you’re simply bad for business, they fire you. You have no First Amendment protections…against private action.”
  — Ron Kuby ([21:15])

• Government Setting Tone, Institutions Enforcing It:

  • House committee hearings and demands from political leaders create pressure, leading to preemptive self-censorship and punitive actions by universities—sometimes regardless of legal success upon challenge.

5. Civil Liberties, Authoritarian Drift & How To Respond ([27:13]–[33:00])

• Uncertain Ends:

  • The pace and path of illiberalism (through gerrymandering, DOJ reversals, assaults on marginalized groups) remain unpredictable.

  • Kuby warns against fatalism or overusing “fascism” as a descriptor; instead, activism should focus on resisting current attacks rather than speculating about dystopian futures.

  Notable Quote:
  “Let’s just come to grips with trying to do something about what is actually happening now.”
  — Ron Kuby ([28:39])

• Legal Strategy in Adverse Courts:

  • Advocates must use conservative precedents (e.g. the anti-commandeering doctrine Supreme Court once championed) to fight new overreach.

  Example:
  Using past conservative defenses of federalism against Trump’s demands that states/localities enforce federal immigration laws.

6. New York Politics: The Mamdani Surge, Billionaire Interests & Eric Adams ([33:00]–[41:53])

• Local Complicity:

  • Mayor Eric Adams described as “wholly owned subsidiary of Trump Incorporated” and likely to comply with federal crackdowns.

  • Real center of power: billionaire class, who desire social stability above all else.

  Memorable Insult:
  [About Curtis Sliwa] “The guy with the red beret who's now 71 years old, looking like a thumb with a red condom on top.”
  — Ron Kuby ([33:14])

• Left Resurgence:

  • Discussion of DSA-backed candidate Zohran Mamdani’s strength in polling, and the fear-mongering “socialism” rhetoric deployed by the establishment.

  • Kuby notes that claims of billionaires or business panic over “socialism” are not matched by any real exodus or drop in housing prices.

  • Quote: “A lot of this is just fear...if people were fleeing New York...housing prices would at least go down. None of that’s happening.” ([39:58])

7. Anti-Semitism, Israel and the Weaponization of Repression ([42:30]–[47:58])

• Unprecedented Policy:

  • U.S. legislation/measures criminalizing boycott of Israel are a new level of repression in support of a foreign government.
  • Kuby points out this policy has gained remarkable traction, even compared to earlier “alien and sedition” acts.

  Sharp Analysis:
  “I have never seen this type of thing before. And...it has been incredibly effective at silencing dissent and making other people police themselves. And as my grandfather used to say, this is not good for the Jews.”
  — Ron Kuby ([45:41])

• Broad Chilling Effect:

  • Critique: Evangelical/Christian right support for Israel is ultimately based on apocalyptic visions, not genuine solidarity with Jewish people.

8. On Jury Nullification, Grand Juries & Resistance (48:09–51:51)

• Sporadic Pushback:

  • Rare moments of grand juries refusing to indict (e.g. over-the-top federal charges) offer some hope.
  • Political repression faces the possibility of nullification in liberal jurisdictions.

  Quote:
  “The good news for people like me is the jurisdictions where they are most likely to attempt that kind of repression are the very jurisdictions where the juries are more likely to fight back against it.”
  — Ron Kuby ([50:56])

9. Lightning Round: Burning the Trump Flag & Closing Thoughts ([51:57]–[54:00])

• Legal Status of Burning a Trump Flag:
  • Kuby: “For now it is. As I am speaking to you now, tomorrow morning, we’ll have to see.” ([52:06])

Notable Quotes & Memorable Moments

• On the executive order:
  “This executive order means absolutely nothing. It is utterly and totally without any operative legal effect.” — Ron Kuby ([11:16])

• On legal strategy:
  “You approach these issues with [conservative constitutional] authority rather than some...liberal terrorists.” — Ron Kuby ([33:00])

• On billionaire scare campaigns:
  “Believing your own bullshit is a bad thing, a bad basis on which to make decisions. And they are making extraordinarily bad decisions.” — Ron Kuby ([37:25])

• On anti-Semitism & Israel:
  “If anybody legitimately thinks that Donald Trump and his whole far right neo Nazi group...care about Jews as Jews, they are deluded.” — Ron Kuby ([46:38])

• On resistance:
  “If we succeed in mitigating some of that, in protesting some of that, in fighting back against some of that, we won’t have to worry about, you know, the ultimate horror.” — Ron Kuby ([29:40])

Timestamps for Key Segments

• Flag burning cases background: [02:06]–[12:35]
• Trump’s executive order dissected: [10:23]–[15:30]
• Book banning, culture wars & academic cowardice: [15:30]–[20:30]
• First Amendment vs. private censorship: [20:30]–[25:58]
• Authoritarian drift & how to fight: [27:13]–[33:00]
• New York politics & class power: [33:00]–[41:53]
• Israel, anti-Semitism, and new repression: [42:30]–[47:58]
• Jury nullification and legal resistance: [48:09]–[51:51]
• Burning the Trump flag & conclusion: [51:57]–[54:00]

Overall Tone & Takeaways

• The episode is lively, occasionally irreverent, and deeply engaged with both legal realities and radical politics.
• Kuby’s approach is grounded, wry, and encouraging: a call not to panic over symbolic distractions but to focus on effective resistance in the present.
• The hosts and guest provide trenchant analysis, rich historical context, and sharp humor—a scrap-perfect primer for radicals and legal nerds alike.