After closely reading the Constitution, the Supreme Court informed us that the speech the First Amendment protects comes in many modes. Speech may look like an arm band worn to protest a war (Tinker v. Des Moines). Speech might even look like corporations throwing a bunch of money at their preferred candidates (Citizens United v. FEC). Hell, Speech might even pop up as something morally objectionable of unsavory like burning the American Flag (Texas v. Johnson). But does any of that matter if the President decides to handwave away silly things like “binding precedent” or judicial review? Well no, so long as you do a little lipservice and pretend as if the Court would be cool with his carve out anyway. This is straight from the White House:
Burning [the American Flag] may incite violence and riot…Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
My Administration will act 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.
“May” is doing a lot of work here — many things ranging from parking spot competition to an Eagles Superbowl win “may” incite violence and/or riot. Will there be legal consequences for a hearty “E-A-G-L-E-S EAGLES!” yell at AT&T Stadium? Things don’t suddenly amount to “fighting words” just because you imagine some eggshell crowd member whose world will upend if he hears love for the wrong team or if kerosene and sparks burn some “Made In China” Americana — which applies just as well to a football jersey or the Stars and Stripes. Our day to day is so warped by the Culture War that damn near anything can be framed as affirming or desecrating our country. Just earlier this year, wearing masks for public safety or not was discussed on the level of choosing liberty or death:
How far is the administration from deciding that mask wearing — unless it’s an ICE agent, naturally — is just as unAmerican as flag burning or not investing in TrumpCoin, tacitly blessing whenever some rando gets so mad about it that they start punching people? Because something as simple as mask wearing is already being treated as “fighting words” by some:
Fortunately, we won’t have to wait long to see how game changing this decree will be for the right to protest — a veteran has already burned an American flag in front of the White House to spite the order:
ps:Let’s see how strong whatever is left of speech protections actually is.
PROSECUTING BURNING OF THE AMERICAN FLAG [Whitehouse.gov]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, is interested in critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.