President Donald Trump appointed himself as a one-man Supreme Court — at least, that is what he wants to believe. Despite over 50 years of rulings from the Supreme Court affirming freedom of speech and flag burning, outside of extreme circumstances, Trump continues demeaning the patriotic act as if it were a criminal offense. This time around, the president claimed he can and has “taken the freedom of speech away” from American flag burners who “incite riots.”
In recent history, the Supreme Court has expanded freedom of speech, with a few exceptions. One of those recognized speech protections comes from the case Texas v. Johnson, where the court upheld Dorsie Johnson’s freedom to burn an American flag. As the court stated then, “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong” by striving to make the country a better place.
On Aug. 28, Trump signed an executive order prosecuting individuals who incite riots by burning the American flag. Specifically, the order instructs the Department of Justice to dance around the logic in Johnson by only prosecuting burnings that act as speech encouraging lawlessness and inciting violence. According to the Court, promoting violence with speech is considered unconstitutional.
This would be a half-decent excuse only if there was any proof that flag burning on its own caused rioting. The executive order also authorized the DOJ to halt immigration proceedings, naturalization processes and revoke visas for flag desecration of any kind, even though permanent residents are entitled to the same First Amendment protections as citizens.
Since the executive order, Trump has doubled down on his commitment to trample free speech. On TruthSocial, Trump proclaimed to law enforcement, the U.S. military, Border Patrol and Immigration Customs Enforcement that “anybody burning the American Flag will be subject to one year in prison. You will be immediately arrested.”
This attitude escalated to the point of Trump claiming he had “taken the free speech away” from protesters burning American flags — a claim that extends far beyond the powers of the president. No part of the government can decide who does and who does not deserve the right to speak freely.
Conjoined with his claims, Trump continued fostering false narratives about protests in Portland, Oregon. While Trump asserts Portland is “burning,” most protests remain peaceful, aside from confrontations outside the city’s ICE facility. Even then, many residents blame customs enforcement for the little violence that occurred.
To justify his declaration, Trump used the arrest of conservative influencer Nick Sortor in Portland. In early October, Sortor confronted many protesters he saw burning flags. On multiple occasions, he pulled burning flags away from protesters to extinguish them. In these incidents, which eventually led to his arrest, he often appeared to be the first or greatest agitator.
Regardless of who is at fault, no one should have their right to free speech unilaterally stripped. Trump is not a one-man court who can decide the rule of law; he is beholden to it. Any attempt to arrest someone for burning a flag during a protest is inherently un-American and unconstitutional. The president cannot claim to be an ally of free speech while actively working to strip it away from the people he disagrees with.
