Why Burning the Flag Is More Powerful—and Protected—Than Trump Wants You to Believe: The Untold Truth Behind Free Speech

So, here we are again—watching that fiery spectacle where the American flag meets the flames, right near the president’s sightline. It’s a scene that’s equal parts provocative and puzzling, sparking an age-old debate about respect, rights, and what really fuels our national identity. But here’s a question that keeps nagging me: when does passionate protest cross the line into something that courts—yes, even the Supreme Court—can and should regulate? The latest executive order aims to crack down on flag burning, branding it as a dangerous affront to unity and security. Yet, history (and hefty legal precedent) reminds us this isn’t the first rodeo. Remember Texas v. Johnson? Justice Brennan’s words echo loud and clear, underscoring that free speech often means stirring the pot—even when it ruffles feathers. So, is this crackdown a genuine effort to maintain peace, or just another legal tug-of-war over the boundaries of dissent? As someone who’s navigated fierce online battles for rankings and relevance, I can’t help but see a parallel: the clashing forces of expression and control, always dancing on the edge of controversy and consequence. Ready to dive into this fiery debate? LEARN MORE

Annnnd, here we go! From the Gilded Palace of Sin (thanks, Gram):

Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation—the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

Notwithstanding the Supreme Court’s rulings on First Amendment protections [Ed. Note: Hoo, boy.], 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.

I await eagerly the executive order that declares desecrating the flag by using it to beat up police officers to be illegal. Anyway, clearly some young, bright Federalist Society hack dreamed up using the “fighting words” doctrine to get around the clear intent of the Supreme Court that flag burning is protected speech, which has been in place since 1989. This order even cites Texas v. Johnson, which holds the opposite of what the administration is arguing. In the majority opinion, Justice William Brennan put paid to this administration’s flimsy rationale 36 years in advance:

However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, it admits that “no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning.” The State’s emphasis on the protestors’ disorderly actions prior to arriving at City Hall is not only somewhat surprising, given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson’s conduct. The only evidence offered by the State at trial to show the reaction to Johnson’s actions was the testimony of several persons who had been seriously offended by the flag burning.

The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Put another way, in the words of a T-shirt that used to be all the rage at the president’s campaign wank-fests … fck your feelings.