President Donald Trump's executive order calls flag-burning "uniquely offensive and provocative" and "a statement of contempt, hostility, and violence against our Nation," and directs federal officials to prosecute flag-burners whenever possible. The Supreme Court ruled in 1989 and 1990 that outlawing flag-burning violates the First Amendment. A young attorney with the Center for Constitutional Rights represented the defendants in both cases under civil-rights attorney William Kunstler. Using content-neutral public-burning laws can allow prosecutions, but the president's stated intent to use such laws against disfavored viewpoints may provide defendants with evidence of viewpoint discrimination and could hinder prosecutions while encouraging additional protests.
But in 1989, and then again in 1990, the Supreme Court ruled that outlawing flag-burning violates the First Amendment. As a young attorney with the Center for Constitutional Rights, I represented the defendants in both cases, working under the civil-rights attorney William Kunstler. Together, the two cases illustrate why punishing flag-burning is antithetical to free speech-and why Trump's order is likely to backfire.
The order notes, correctly, that flag-burners could be charged for violating general, "content-neutral" prohibitions on public burning, which serve environmental or public-safety interests, even though the Court has held that laws singling out the burning of flags are unconstitutional. Accordingly, the federal government has charged the combat veteran with violating a rule that bars burning of any kind in D.C.'s Lafayette Park.
Collection
[
|
...
]