An executive order would require the attorney general to prosecute individuals who desecrate the American flag and to pursue litigation to clarify the First Amendment scope regarding flag desecration. The order would direct the attorney general to refer flag-desecration cases that violate state and local laws to appropriate authorities. The order would authorize the attorney general and the secretary of homeland security to deny, prohibit, terminate, or revoke visas and other immigration benefits for non-citizens when appropriate. A supporting fact sheet describes the American flag as sacred and calls flag desecration offensive, provocative, and used by foreign nationals to intimidate and threaten violence. The Supreme Court has repeatedly held that flag burning is protected symbolic speech, including Texas v. Johnson (1989).
According to Fox, Trump's executive order will direct the attorney general to prosecute those who violate laws in ways that involve desecrating the flag,' and to pursue litigation that would clarify the scope of the First Amendment as it relates to flag desecration, directs the attorney general to refer flag desecration cases that violate state and local laws to appropriate local authorities, and directs the attorney general and secretary of homeland security to deny, prohibit, terminate, or revoke visas or other immigration permits and benefits of a non-citizen wherever there has been an appropriate determination that flag desecration by foreign nationals permits the exercise of those remedies under applicable law.'
The American flag is the most sacred and cherished symbol of the United States of America, and desecrating it is uniquely and inherently offensive and provocative. It is a statement of contempt and hostility toward our Nation, and an act used by groups of foreign nationals calculated to intimidate and threaten violence against Americans.
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.
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