President Donald Trump signed an executive order on flag burning and cashless bail:
Trump said (yes, he mentions the 1989 SCOTUS ruling):
TRUMP: They’re burning flags all over the world. They burn the American flag. And as you know, through a very sad court, I guess it was a five to four decision. They called it freedom of speech. But there’s another reason, which is perhaps much more important. It’s called death. Because what happens when you burn a flag is the area goes crazy. If you have hundreds of people, they go crazy. You can do other things. You can burn this piece of paper, you can and it’s but when you burn the American flag, it incites riots at levels that we’ve never seen before. People go crazy in a way, both ways. There are some that are going crazy for doing it. There are others that are angry, angry about them doing it. Do you want to discuss that?ASSISTANT: Sure what the executive order does, sir, it charges your Department of Justice with investigating instances of flag burning and then where there’s evidence of criminal activity that where prosecution wouldn’t fall afoul of the First Amendment, and instructs the Department of Justice to prosecute those who are engaged in these instances of flag burning.TRUMP: What the penalty is going to be, if you burn a flag, you get one year in jail. No early exits, no nothing. You get one year in jail. If you burn a flag, you get and what it does is incite to riot. I hope they use that language, by the way, did they?ASSISTANT: Incite to riot.TRUMP: And you burn a flag, you get one year in jail. You don’t get 10 years. You don’t get one month. You get one year in jail, and it goes on your record, and you will see flag burning, stopping immediately, just like when I signed the statute and monument act, 10 years in jail. Have you heard any of our beautiful monuments? Everybody left town, they were gone. Never had a problem after that. It’s pretty amazing. We stopped it.But this is something that’s, I don’t know, in a certain way, it’s equally as important. Some people say it’s more important because the people in this country don’t want to see our American flag burned and spit on and by people that are, in many cases, paid agitators. They’re paid by the radical left to do it. You talk to these people, they don’t even know. Half of them don’t even know what they’re doing. They say, “I don’t know. They gave me money to do this.” I see the same things that you did. They’re bad people. They’re trying to destroy a nation that’s not working because I think our nation now is the most respected nation anywhere in the world by far.You saw that with the European leaders on Friday, you saw that with NATO, where they agreed to go from 2% no pay to 5% fully paid up, trillions of dollars paid, where they respect your president to a level that they jokingly call me the President of Europe. They call me the president of Europe, which is an honor. I like Europe, and I like those people. They’re good people, they’re great leaders. And we’ve never had a case where seven plus, really, 28 essentially, 35-38 countries were represented here the other day, 38 European countries, were European, and other countries were represented. And it was a great meeting.But your country is respected again.I say it all the time. One year ago, our country was dead. Everybody said it. We had a dead country. We were not going to survive. Now we have the hottest country anywhere in the world. So it’s an honor to be involved, and this group has a lot to do with it right behind me.
The order won’t stand, even with the language “inciting a riot.” If you can prove the people had the intent to incite a riot, then charge them with that.
The order says: “Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.”
So, here’s the thing. I don’t know if other language in the EO will force the courts to uphold the EO.
The executive order makes it clear that it is meant to stop people from burning the flag, not to stop inciting riots.
In 1989, the Supreme Court ruled in Texas v. Johnson that the First Amendment protects flag burning:
Justice William Brennan wrote the majority decision, with Justices Anthony Kennedy, Thurgood Marshall, Harry Blackmun and Antonin Scalia joining the majority. “[Lee] Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace,” said Brennan. “Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”Justice Anthony Kennedy, writing a concurrence, spelled out his reasoning succinctly.“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.”
In a press release, the White House described cashless bail as “a government-backed crime spree.”
“It is therefore the policy of my Administration that Federal policies and resources should not be used to support jurisdictions with cashless bail policies, to the maximum extent permitted by law,” according to the EO.
Another cashless bail EO applied to Washington, D.C., which also aims to end unwarranted pretrial release:
(a) To prevent the release of dangerous suspects based on cashless bail policies, relevant Federal law enforcement agencies and officials who are members of the D.C. Safe and Beautiful Task Force established in Executive Order 14252 of March 27, 2025 (Making the District of Columbia Safe and Beautiful), shall work to ensure that arrestees in the District of Columbia are held in Federal custody to the fullest extent permissible under applicable law, and shall pursue Federal charges and pretrial detention for such arrestees whenever possible, consistent with applicable law, to ensure that criminal defendants who pose a threat to public safety are not released from custody prior to trial.(b) Further, the Attorney General shall review the Metropolitan Police Department (MPD) General Orders and other policies and practices of the MPD to identify those that may result in pretrial release of criminal defendants who pose a threat to public safety and, consistent with section 740 of the District of Columbia Self-Government and Governmental Reorganization Act (Public Law 93-198), shall request that the Mayor of the District of Columbia make such updates and modifications to such orders and policies as the Attorney General determines would be necessary to address the crime emergency and help to ensure public order and safety.
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