Tangle Podcast: "Should Flag Burning Be Illegal?"

Host: Isaac Saul
Date: August 28, 2025
Episode Theme: Examining the legality, constitutionality, and political controversy around flag burning in the United States, especially in the wake of President Trump's new executive order.

Episode Overview

This episode dives into the heated debate over flag burning and whether it should be illegal. Host Isaac Saul explores the recent executive order by President Trump directing prosecution of certain kinds of flag desecration, discusses the legal precedent on the issue, and presents arguments from both the right and the left. The episode then concludes with Isaac’s nuanced take, a listener Q&A, and notable statistics about public opinion on flag burning.

Key Discussion Points & Insights

Context: Trump’s Executive Order on Flag Burning

• New executive order: President Trump signed an order instructing the Attorney General to prosecute unlawful acts involving the desecration of the American flag (06:06).

  • The order references the incitement of violence or "imminent lawless action" as a threshold for prosecution.
  • It also instructs federal agencies to deny visas or immigration benefits to foreign nationals who desecrate the flag.
  • Notably: The executive order does NOT ban all flag burning, seeking instead to focus on cases that provoke violence.

• Recent incident: A man was arrested after setting a flag on fire outside the White House in protest of the order. He was charged not for flag desecration, but for setting a fire in a prohibited area.

• Legal backdrop:

  • Texas v. Johnson (1989): Supreme Court ruled 5-4 that burning the American flag is protected symbolic speech under the First Amendment.
  • U.S. v. Eichman (1990): The Court struck down federal laws criminalizing flag desecration.

What the Right is Saying (11:26)

• Mixed views: Some conservatives back the order, arguing it properly targets unprotected speech (incitement), while others believe it is unconstitutional.

• Newsweek, Josh Hammer:

  • "Trump’s bold move is not merely symbolic, it’s a restoration of allegiance to the foundational totems that unite us as a people and a nation..." (12:32)
  • Argues the flag is more than a symbol—it’s “the embodiment of our national identity.”
  • Believes the order targets only actions that genuinely provoke civil unrest, in line with existing First Amendment exceptions.

• Reason, Robby Soave:

  • "Free speech, though, is among the most fundamental American values of all..." (13:11)
  • Notes speech is protected even if it’s offensive, and that incitement must meet a very high legal bar.
  • Sees little difference between burning a flag and advocating lawless action; context is what matters.

• Fox News, Jonathan Turley:

  • "The proposed prosecutions would be unconstitutional...absent an unlikely major reversal of prior precedent by the court, flag burning will remain a protected form of free speech..." (14:12)
  • Warns about the dangers of enhancing penalties for “selective speech” and the possibility of government overreach.
  • Emphasizes the need to defend unpopular speech.

What the Left is Saying (15:06)

• General consensus: The order is unconstitutional, though some worry the current Supreme Court may ignore precedent.

• The Nation, Elie Mystal:

  • "More likely, this executive order will create the problem it purports to solve..." (15:41)
  • Notes there’s no “epidemic of flag burning,” so the order addresses a non-issue.
  • Predicts the Supreme Court’s right-leaning majority could revisit established precedent.

• Washington Post Editorial Board:

  • “Like both men, we find flag burning contemptible ... Scalia was correct, however, that the First Amendment protects contemptuous speech.” (16:47)
  • Suggests the order is more about provocation and political optics than policy.

• Techdirt, Mike Masnick:

  • "...The burning of the American flag is almost always protected expression under the First Amendment..." (17:22)
  • Points out that exceptions for “fighting words” or “imminent lawless action” are almost never met by peaceful flag burning.
  • Cites recent right-wing hypocrisy regarding protests and other forms of symbolic expression (like pride flag burning).

Isaac Saul’s Take (19:31)

• Public misconception: Most Americans dramatically overestimate support for and incidence of flag burning; it’s a rare and deeply unpopular act.

• Personal reaction:

  • Saul admits, "My emotional knee jerk reaction is that I would feel perfectly all right if that person gets punished for it." (21:13)
  • Yet stresses that his personal discomfort is separate from the legal and constitutional question.

• Legal principles:

  • Cites Texas v. Johnson: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (24:55)
  • Defends the bright line protecting offensive political speech.

• Political commentary:

  • Highlights rightward shifts in the conservative movement with specific mention of Matt Walsh’s changing stance:
    • 2019: "…free speech doesn’t include desecrating cloth is a really weird position…"
    • 2025: “the people who burn the flag are, without exception, degenerate communist filth who want you and your family dead…" (25:50)
  • Indicates how political audience capture and party loyalty can shape public opinion on free speech.

• Flag burning compared to other acts:

  • Burning other symbols (pride flags, BLM flags) is also legal, unless the act involves theft, arson, threats, or occurs in a restricted space.
  • Example: Adolfo Martinez case, where the crime was theft, arson, threats—not the burning itself (26:55).

• Bottom line:

  • "We don’t need an executive order that blurs the lines of free speech to prosecute this act. It’s already criminal [when laws are actually broken]. In that sense, this order is probably a nothing burger, albeit a provocative one..." (27:15)
  • Warns that creating special rules curtailing offensive speech can backfire and erode liberty for all.

Notable Quotes & Memorable Moments

• Josh Hammer (Right, Newsweek): "Trump sends a clear message: National unity requires national respect." (12:52)
• Jonathan Turley (Right, Fox News): "We do not need the First Amendment to protect popular speech." (14:50)
• Elie Mystal (Left, The Nation): "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." (15:59)
• Washington Post Editorial: “Scalia was correct, however, that the First Amendment protects contemptuous speech.” (16:49)
• Isaac Saul: "Our flag evokes in me all the things I love about our country...a sense of unity, a duty, a freedom...I would feel perfectly all right if that person gets punished for it. But whether you abhor a flag burning or not is a separate question from whether or not it should be protected speech." (21:13)
• Matt Walsh (quoted by Isaac): “You don’t have to debase yourself by defending these scumbags just because five random Supreme Court justices in the 80s decided out of nowhere that burning the flag is a God given right.” (25:56)
• Isaac Saul: “It’s about maintaining a bright red line between how I’m allowed to express my thoughts and the government’s authority to restrict my liberty.” (27:10)

Timestamps for Important Segments

• Explanation/context for executive order: 06:06–09:40
• The right’s arguments: 11:26–15:06
• The left’s arguments: 15:06–19:31
• Isaac Saul’s take: 19:31–27:17
• Notable listener Q&A on capitalism: 28:42–30:56

Additional Insights & Statistics

• Public Opinion:

  • A 2024 CBS/YouGov poll: 66% of Americans said flag desecration should be illegal; 34% said it should be legal (30:35).
  • The overwhelming majority would never participate in a flag burning protest.

• Legal Nuance:

  • Burning a flag is only illegal if tied to other crimes (arson, theft, threats, etc.)
  • The executive order doesn’t create new legal prohibitions but signals a potentially aggressive enforcement and possible chilling effect on free speech.

Summary

This episode offers a thorough and balanced exploration of the flag burning controversy, contextualizing President Trump’s executive action within Supreme Court precedent and the current political landscape. The conversation features sharp, original analysis from both sides of the spectrum and concludes with the host's thoughtful personal (and legal) reflection—reminding listeners the true test of free speech is protecting even that which we find most offensive.

Listeners come away appreciating the complexity and importance of standing up for First Amendment rights—even when it means defending deeply unpopular forms of protest.