Judging Freedom - Judge Andrew Napolitano - Law of the Land : No president, No Congress, can silence expression simply because it offends.
Aired: 2025-08-26
Duration: 05:53

[00:00:00]  President Donald Trump has signed a new executive order that would make burning the American flag a crime.
[00:00:05]  Lastly, sir, this is an executive order on flag burning that charges your Attorney General.
[00:00:09]  Would you listen to this?
[00:00:10]  This is very important.
[00:00:12]  Flag burning.
[00:00:13]  All over the country, the burning flag.
[00:00:15]  It's a bold move, one that immediately sparked fierce debate, and one that legal experts say is likely to be short-lived in the courts.
[00:00:22]  The executive order, signed earlier today, directs federal agencies to seek penalties, including fines and possible jail time, for anyone convicted of deliberately setting fire to the American flag.
[00:00:33]  What the executive order does, sir, it charges your Department of Justice with investigating instances of flag burning?
[00:00:40]  And what the penalty is going to be, if you burn a flag, you get one year in jail.
[00:00:46]  Supporters say it's about defending a cherished national symbol, but critics warn it's a direct challenge to free speech rights guaranteed under the First Amendment.
[00:00:55]  This is not the first time flag desecration has tested America's legal boundaries.
[00:01:00]  In fact, the Supreme Court decided this issue more than three decades ago.
[00:01:05]  In 1989, In a landmark case called Texas vs.
[00:01:09]  Johnson, the court struck down a Texas law that made it illegal to burn the flag.
[00:01:14]  The justices ruled 5 to 4 that flag burning is a form of symbolic speech and therefore protected under the Constitution.
[00:01:23]  That ruling was controversial then and it remains controversial now.
[00:01:28]  At the time, President George H.W. Bush called for a constitutional amendment to ban flag burning while members of Congress rushed to introduce legislation.
[00:01:38]  Yet, again and again, courts reaffirmed that the First Amendment protects even the most offensive forms of expression.
[00:01:45]  On Wednesday morning, the Supreme Court issued a decision which held that a person could not be convicted for desecration of our flag, the American flag, because to do so would infringe upon the right political protest.
[00:02:03]  Now we've got to be very careful in our society to preserve the right to protest government action.
[00:02:11]  However, I believe that the flag of the United States should never be the object of desecration.
[00:02:19]  Flag burning is wrong.
[00:02:21]  Protection of the flag, a unique national symbol, will in no way limit the opportunity nor the breadth of protest available in the exercise.
[00:02:33]  of free speech rights.
[00:02:35]  And I have the greatest respect for the Supreme Court and indeed for the justices who interpreted the Constitution as they saw fit.
[00:02:45]  But I believe the importance of this issue compels me to call for a constitutional amendment.
[00:02:52]  Support for the First Amendment need not extend to desecration of the American flag.
[00:02:58]  One of the most notable defenders of the ruling was the late Justice Antonin Scalia, a conservative icon appointed by President Ronald Reagan.
[00:03:06]  Scalia made it clear that while he personally despised flag burning, his duty as a justicece was to the Constitution, not his own preferences.
[00:03:14]  He famously said, quote, If it were up to me, I would jail every scruffy-bearded weirdo who burns the American flag.
[00:03:22]  But I am not king.
[00:03:24]  End quote.
[00:03:25]  That blunt acknowledgement captures the tension at the heart of this debate.
[00:03:29]  Flag burning is offensive to many Americans, but offense alone is not grounds for government punishment.
[00:03:35]  As Scalia himself underscored, the Constitution protects freedom of speech precisely when it is unpopular.
[00:03:41]  If I were king, I would not allow people to go about burning the American flag.
[00:03:47]  However, we have a First Amendmentment, which says that the right of free speech shall not be abridged, and it is addressed in particular to speech critical of the government.
[00:04:02]  I mean, that was the main kind of speech that tyrants would seek to suppress.
[00:04:08]  Burning the flag is a form of expression.
[00:04:11]  Speech doesn't just mean written words or oral words.
[00:04:17]  It could be semaphore.
[00:04:19]  Burning a flag is a symbol that expresses an idea.
[00:04:23]  The political impact, however, may be just as significant as the legal one.
[00:04:27]  By issuing this order, President Trump is appealing directly to his base, many of whom view the flag as sacred and flag burning as an attack on American values.
[00:04:37]  His supporters argue that the act of burning the flag is not speech but a desecration and that the government has a duty to protect its most important national symbol.
[00:04:46]  But opponents counter that patriotism cannot be compelled by law.
[00:04:50]  They argue that true loyalty to the flag lies in defending the freedoms it represents, especially the freedom of expression.
[00:04:57]  As one commentator put it today, the flag stands for liberty.
[00:05:01]  If we punish people for burning it, we risk betraying the very ideals it symbolizes.
[00:05:07]  For now, the executive order has set the stage for another major constitutional battle.
[00:05:12]  Legal challenges could take months, even years, to work their way through the courts.
[00:05:18]  But if history is any guide, the outcome is predictable.
[00:05:21]  The Supreme Court has been here before, and it has consistently ruled that flag burning, however offensive, is protected speech.
[00:05:29]  And so tonight, the United States once again finds itself at the intersection of patriotism and liberty.
[00:05:36]  On one side, a president demanding greater respect for the flag.
[00:05:40]  On the other, a constitution that demands greater respect for free speech.
[00:05:44]  As Justice Scalia's words remind us, no president, no Congress, and no majority can silence expression simply because it offends.