"We took the freedom of speech away because that's been through the courts, and the courts said you have freedom of speech but what has happened is when you burn a flag, it agitates and irritates crowds never seen anything like it, on both sides and you end up with riots. So we're going on that basis. We're looking at it from, not from the freedom of speech, which I always felt strongly about, but never passed the courts."
"The Supreme Court has taken a starkly different view from Trump's framing of the issue, deciding on multiple occasions that flag burning is protected speech, and furthermore rejected arguments that flag burning alone could constitute incitement. In Texas v. Johnson in 1989, the Court held in a 5-4 decision that burning the flag was symbolic speech intended to convey a political message and therefore protected under the First Amendment to the U.S. Constitution."
"The case arose from an incident at the 1984 Republican National Convention in Dallas where Gregory Lee Johnson burned a flag during a political protest. The majority opinion by Justice William Brennan was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy and affirmed the opinion from the Texas Criminal Court of Appeals that had overruled Johnson's conviction."
The administration announced a one-year criminal penalty for inciting riots through flag burning, framing the measure as a public-safety response to crowd agitation and potential violence. The administration framed the change as prioritizing order over restrictions that courts had not upheld. The Supreme Court has repeatedly held that flag burning constitutes symbolic political speech protected by the First Amendment and has rejected the view that flag burning alone constitutes incitement. Texas v. Johnson (1989) produced a 5-4 ruling that burning the flag to convey a political message is protected speech, overturning Gregory Lee Johnson's conviction.
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