President Donald Trump signed an executive order Monday that requires the Department of Justice to investigate and prosecute incidents in which an American flag is burned.
The order runs counter to a Supreme Court decision that holds flag burning is free speech explicitly protected under the First Amendment of the United States Constitution.
That ruling, in Texas v. Johnson in 1989, held that burning the American flag constituted "symbolic speech" and was guaranteed protection. It noted that even if society found acts of speech "outrageous" or offensive, they remained protected from government interference.
The new order from the White House includes qualifications that such burning may still be prosecuted if it could be considered incitement.
"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," the order reads.
Those found guilty under the new order will face a year in jail without the possibility of early release. Foreign nationals found guilty may have residency or other permits revoked and may be deported.
President Trump said in remarks during the signing that flag burning “incites riots at levels we've never seen before," without offering specific evidence.
“I guess it was a 5 to 4 decision," the president said of the 1989 Supreme Court case that protected flag burning. "They called it freedom of speech. But there’s another reason, which is perhaps much more important. It’s called death."
"Because what happens when you burn a flag is the area goes crazy,” Trump said. “If you have hundreds of people, they go crazy.”
RELATED STORY | Trump eyes Democratic cities after arming National Guard in Washington, DC
Other orders President Trump signed Monday include measures to increase federal oversight of National Guard units and to cut funding for states over certain cashless bail practices.
An order directs the hiring of more U.S. Park Police and federal prosecutors to focus on violent and property crimes in D.C. It directs the Secretary of Defense to create a specialized unit within the D.C. National Guard "subject to activation under Title 32 of the United States Code, that is dedicated to ensuring public safety and order in the Nation’s capital." They will also be "deputized to enforce federal law."
It also directs the Secretary of Defense to begin training members of each state's Army and Air National Guards to "quell civil disturbances." It calls for a "National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment."
Another order calls for executive agencies to withhold federal funds to states and jurisdictions that have eliminated cashless bail "for crimes that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism."
