Many of President Donald Trump’s supporters were taken aback when he signed an executive order Monday to prosecute those who burn the American flag. However deplorable or unpatriotic the act may be, imprisoning someone for it runs counter to the First Amendment’s guarantee of free expression.
In Texas v. Johnson (1989), the Supreme Court made that principle explicit, ruling that the First Amendment “protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.”
Trump’s order attempts to sidestep that precedent, calling for prosecutions where flag burnings threaten or actually incite lawless action. It acknowledges constitutional protections, but insists: “The [Supreme] Court has never held that American flag desecration conducted in a manner likely to incite imminent lawless action or amounting to ‘fighting words’ is constitutionally protected.”
The order leans on Brandenburg v. Ohio (1969), in which the Supreme Court ruled, “The government may restrict speech only when it is both intended to incite lawless action and likely to produce it.
Despite that ruling, Trump’s executive order is on a slippery slope. Courts are unlikely to uphold it — and in the end, it will almost certainly be struck down as unconstitutional.
But for all the outrage that Trump is a despot determined to take away our constitutional rights, I don’t recall much outrage when an Iowa man burned a church’s Pride flag in 2019 — and was sentenced to 16 years in prison.
Journalist Sean Davis reminded readers of this “hate crime” originally reported in the Des Moines Register and republished by USA Today.
An Ames man was sentenced Wednesday to about 16 years in prison after he set fire to a church’s LGBTQ flag in June.Adolfo Martinez, 30, of Ames, was found guilty last month of third-degree arson in violation of individual rights — hate crime, third-degree harassment, and reckless use of fire as a habitual offender.He was arrested after stealing a pride banner hanging at Ames United Church of Christ, 217 6th St., and burning it early June 11 outside Dangerous Curves Gentleman’s Club, 111 5th St., police said.
Davis added a second post to further make his point:
If it’s illegal to burn pride flags or do burnouts on rainbow crosswalks, then it should be illegal to burn the American flag.And if it’s illegal to burn a dollar in protest of fiat money (18 U.S.C. 333), there should be no issue with making it illegal to burn the American flag. Either arson is speech, or arson is a crime.No more of this “it’s okay when we burn your symbols but a crime when you burn our symbols” nonsense.
Wasn’t Martinez simply exercising his rights under the First Amendment?
The issue in Martinez’s case may boil down to his theft of the flag from the church and his reasons for stealing it and then destroying it. According to Story County Attorney Jessica Reynolds, “the hate crime charges were added because Martinez is suspected of criminal mischief against someone’s property because of ‘what it represents as far as sexual orientation.'”
As for why he received such a long sentence, the Des Moines Register reported:
He faced a maximum of five years in prison for the hate crime and arson charge and a maximum of a year and month for the other two charges, according to Iowa sentencing guidelines. Court records list him as a habitual offender, allowing him to be sentenced to a longer prison term.
Despite Reynold’s distinction in this case, the political double standard is obvious.
You may recall the July 2024 incident that occurred outside Washington, D.C.’s Union Station during a visit by Israeli Prime Minister Benjamin Netanyahu. Following his speech to a joint session of Congress, protesters who had warned of a “day of rage,” lowered an American flag, burned it, and replaced it with a Palestinian flag.
It seems to me that these “protesters” stole property and committed arson, all while carrying out a hate crime — the very same charges that Martinez was convicted of.
The Washington Post reported that police arrested 25 protesters that day, but prosecutors dropped charges against 11 just two days later. The fate of the remaining 14 is unclear — though I highly doubt any of them were sentenced to 16 years.
But one X user who replied to Davis’s post may be onto something. He speculated that Trump might be setting up a scenario to force the Supreme Court to take a stand: either “you can burn whatever flag you want, or you can’t burn any flag.” Most likely, the Court would decide the former.
Elizabeth writes commentary for Legal Insurrection and The Washington Examiner. She is an academy fellow at The Heritage Foundation. Please follow Elizabeth on X or LinkedIn.
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