B (11:26)
All right, first up, let's start with what the right is saying. The right is mixed on the order, with some saying it properly distinguishes between protected and non protected speech. Many, however, suggest it runs afoul of the Constitution. Others suggest the Supreme Court is likely to side with a challenge to the order. In Newsweek, Josh Hammer argued flag burning is not protected speech. Trump's bold move is not merely symbolic, it's a restoration of allegiance to the foundational totems that unite us as people and a nation, hammer wrote. The American flag is not a mere inanimate banner. It is the embodiment of our national identity, the collective sacrifice of generations and the unity of otherwise diverse peoples under shared principles and a shared polity. When reprobates desecrate the American flag, they assault not merely fabric, but our American heritage and way of life. By enforcing tangible consequences for such rogue behavior, President Trump sends a clear message. National unity requires national respect. Many legal critics are predictably howling, citing Texas vs. Johnson from 1989 and U.S. v. Eichmann in 1990. But Trump's executive order on its face, only narrowly targets actions that genuinely provoke danger, riot or civil unrest. Hammer said there is, or at least was intended to be, a massive First Amendment distinction between protected speech and non protected conduct. That distinction has been blurred by decades of left liberal and right liberal constitutional jurisprudence, but the distinction remains for all who have any cursory familiarity whatsoever with the history and political theory of the American founding. In reason, Rabiseau called the executive order unconstitutional. It's understandable why people don't like flag burning. The flag is a visual representation of the principles upon which America was founded, and when it's disrespected, many Americans take it as a sign that those values are being treated with contempt, soav wrote. Free speech, though, is among the most fundamental American values of all. The right of Americans to speak their minds is enshrined in the First Amendment. Importantly, this right does not apply solely to benign, polite, socially acceptable speech. The Executive Order grapples with the actual existing court precedents in creative fashion introducing the idea that while flag burning itself might be protected speech, flag burning that is likely to incite imminent lawless action could still be criminalized. This is true to the extent that incitement is one of the only exceptions to the First Amendment. It isn't specific to flag burning, though. An expressive action that incites other people to engage in specific direct lawlessness might be outside the bounds of the First Amendment, whether or not the action has anything to do with the flag. So have said the key word there is might. However, there's obviously a fundamental difference between engaging in speech to directly advocate for lawless action and burning the American flag. In Fox News, Jonathan Turley said the order sets up a big fight. Down the road. The president might be hoping the Supreme Court might salute and reverse long standing precedent declaring flag burning to be protected speech under the First Amendment. If so, he's likely to be disappointed. The proposed prosecutions would be unconstitutional and absent an unlikely major reversal of prior precedent by the court, flag burning will remain a protected form of free speech, turley wrote. Consider the implications of laws enhancing prosecution and penalties for selective speech. A liberal president could seek enhancements for views deemed hate speech or disinformation. Flag burners can still be prosecuted for burning material on streets or public property. However, those laws must be neutrally written and neutrally applied. Otherwise, Trump and others could seek a constitutional amendment to create an exception for flag burning under the First Amendment, Turley said. This is never an easy fight for free speech defenders. No one relishes being accused of defending flag burners. However, free speech often demands that we fight for the rights of those we despise or views we deplore. We do not need the First Amendment to protect popular speech. Alright, that is it for what the right is saying. Which brings us to what the left is saying. The left argues the order is unconstitutional, but many worry the Supreme Court could ignore precedent to uphold it. Some note that the action tramples on traditional conservative views on free speech. Others suggest the order is toothless. In the Nation, Elie Mistahl called the order a total setup. The order purports to restore respect and sanctity to the American flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country to the fullest extent permissible under any available authority, Mistahl wrote. A 3 by 5 foot American flag, which Google tells me is a standard size for an American home, costs around 25 bucks on Amazon. I don't know a lot of people who are setting 20s on fire given Trump's economy. So I am confident we are not currently experiencing an epidemic of flag burning such that we need an entire executive order to restore respect to the nylon. More likely, this executive order will create the problem it purports to solve. Flag burning was settled constitutional law, but that's not the whole story. The Supreme Court left open the possibility that flag burning could still be criminal if it were likely to inspire imminent lawless action, Mistahl said. The current Supreme Court has shown no respect for its own precedents, even the ones it laid down only a few years ago. This gang of Republicans masquerading as judges will have no problem overturning a 36 year old case that their side only barely lost anyway. If the Republican supermajority wants to make flag burning unconstitutional, it certainly can, the Washington Post editorial board wrote about Donald Trump versus Antonin Scalia. Trump's order targets flag burning for precisely the reason Scalia thought it was constitutionally protected because it is a statement of contempt for the United States, as the order puts it, the board said. Like both men, we find flag burning contemptible and understand the visceral emotion that virtually all Americans feel when they see Old Glory set ablaze. Scalia was correct, however, that the First Amendment protects contemptuous speech. Like many of Trump's executive orders, this one seems intended less for its policy effect than as a provocation. If left wing activists start burning flags to make a point, they will play right into Trump's hands. He wants to wrap himself in the American flag, the board wrote. The challenge for opponents of the president is to behave more like Scalia, that is to project their patriotism while also refusing to yield on core constitutional rights. In Techdirk, Mike Masnik criticized Trump for criminalizing free speech. The executive order is so weak because, as it acknowledges, the Supreme Court has made it clear that the burning of the American flag is almost always protected expression under the First Amendment. It also highlights the point that flag burning is not just highly expressive, but the fact that America allows for the burning of its flag as a form of speech highlights American ideals. Master of course, the MAGA crowd knows all of this, even if they're pretending to forget it. This week you may recall that just last year the Heritage foundation chose to fly the American flag upside down over its headquarters after Donald Trump was found guilty by a jury. The executive order pretends to get around all this by pretending that it's only talking about unconstitutional versions of flag burning, which they claim are when it amounts to fighting words or likely to insult imminent lawless action, masnik said. This is constitutional nonsense on multiple levels. The fighting words exception has been effectively neutered by decades of Supreme Court decisions, and the Brandenburg eminent lawless action standard sets an incredibly high bar that peaceful flag burning never meets. Alright, let's head over to Isaac for his take.
