- 1 year ago
Brian Hauss, a senior staff attorney at the ACLU, joined Forbes senior editor Maggie McGrath on "Forbes Newsroom" to discuss President Trump's executive order on flag-burning.
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00:00Hi, everyone. I'm Maggie McGrath, senior editor at Forbes. On Monday, President Trump
00:08signed an executive order saying that to burn an American flag is an act that could be prosecuted
00:16to the fullest extent of the law. This is drawing lots of questions from First Amendment advocates
00:22and joining us now to break down what it all means is Brian House. He is a senior staff
00:28attorney with the ACLU's Speech, Privacy and Technology Project. Brian, thanks so much for
00:34joining us. Thanks for having me. So I want to read you part of this executive order. This I will
00:40emphasize is just a portion and not the entire thing. But the executive order that Trump signs
00:45signed reads in part, my administration will act to restore the respect and sanctity of the American
00:53flag and prosecute those who incite violence or otherwise violate laws while desecrating the
01:00symbol of our country to the fullest extent permissible under any available authority.
01:07There's a lot to unpack here, but broadly, can you break down what this executive order means?
01:13Essentially, what the executive order does is instruct federal prosecutors to abuse their
01:19discretion and look for excuses to charge people who are engaged in acts of flag burning. Now,
01:27it's important to clarify here that the executive order does not and cannot create a new federal crime.
01:33Congress writes the criminal statutes, not the president. And the Supreme Court held about 30 years
01:38ago that the First Amendment prohibits the government from criminally punishing burning of the flag or
01:44desecrating the flag because of the message that it sends. So that's not what President Trump is doing
01:49here. Instead, what he's doing is he's instructing federal prosecutors to look for excuses to charge
01:54people who are engaged in flag burning when the real motivation behind it, as the executive order
01:59makes clear, is the message that they're sent. I have a lot of follow-up questions to what you just said,
02:04but just to be very clear and perhaps a little pedantic here, is what this executive order is saying,
02:10is that a violation of the First Amendment? What the executive order is doing does violate the First
02:17Amendment because it's instructing federal prosecutors to target people on the basis of
02:22their protected expression. This is what's known as selective prosecution. So if a federal prosecutor
02:28is charging someone with a crime, even if they violated a statute, if the motivation behind the
02:34charging decision is impermissible, for example, because they're a Democrat or because of their
02:39protected expression, they can raise what's known as a selective prosecution defense, essentially saying
02:43that the real motivation for their prosecution is their speech and not any unlawful conduct that they
02:49might be engaged in. That's exactly what this executive order is instructing prosecutors to do.
02:54The other piece of language that was interesting to me in the executive order is that under any
02:59available authority, that feels very specific to me, but I am not a lawyer. Did that stand out to you?
03:06And does that mean that federal agents could go after someone in a way that state agents would not?
03:12Is there a difference there? So federal agents and state law enforcement officers do
03:16enforce different authorities. Federal law enforcement officers enforce federal statutes.
03:21State law enforcement officers enforce state criminal laws. In this case, what the executive
03:27order is telling federal prosecutors to do is look for any excuse. Let's say there's a federal ordinance
03:31that bans burning anything outdoors in a public park, right? And it's saying you can apply that
03:37ordinance. Maybe you wouldn't apply in certain circumstances. Maybe you would enforce it in
03:42others. What I really want you to do is kick anybody who's burning an American flag in public
03:47park up to the front of the line. And so while the government can neutrally enforce those statutes,
03:54right, it can say it can make it a crime to burn things in certain public places. What it can't do
03:59is target someone for burning something because of the message that it sends. And that's what the
04:04executive order is telling prosecutors to do. It's saying apply these statutes unequally to people
04:09on the basis of the message that they're trying to send.
04:13And supporting what you just said, when he signed the executive order, Trump did say, quote,
04:19when you burn the flag, it incites riots at levels we've never seen before. So in the president's
04:27view, is he trying to tamp down protests?
04:31I mean, that's just pure rhetoric on the president's part. I think what he's referring
04:35to there is what's known as the incitement standard, right? There are certain circumstances
04:40that speech is not protected when it incites unlawful violence. But the Supreme Court has
04:45applied a very, very robust First Amendment test to determine when something meets the definition
04:51of incitement, precisely because laws that enable the government to prosecute incitement
04:55have a very strong danger of being used to silence political protest. And so the Supreme
05:01Court has said that incitement can only be prosecuted when it's intended to incite unlawful
05:05violence and when there is an objective likelihood that it will incite imminent unlawful violence.
05:11And the fact of the matter is the vast majority of circumstances where someone's burning a flag,
05:15even the American flag, it's not likely to incite imminent unlawful violence, and it's not intended
05:20to do so. And so the incitement statutes really have no application there. But even in those
05:25circumstances where the speech is unprotected, if the government is targeting that speech
05:30specifically because of the message it's sending, unrelated to whether it's incitement or whether
05:35it's a threat or something like that, but just because the government doesn't like the viewpoint
05:38of the person saying it, that still violates the First Amendment. Even with regards to unprotected
05:43speech, the government can't single out specific viewpoints for special punishments. And again,
05:48that's exactly what this executive order does.
05:50Now, you mentioned the Supreme Court case. Is that the Texas v. Johnson case from 30 years ago? And if
05:57so, can you talk about what that case, the precedent that established, and what this executive order
06:03means for that precedent?
06:05Sure thing. So Texas v. Johnson concerned a challenge to Texas's flag desecration statute.
06:11Texas, like almost every other state in the country at that time, had laws that prohibited
06:16desecrating the American flag. And somebody who earned the American flag in protest was prosecuted
06:22under that statute, and he appealed his conviction all the way up to the Supreme Court. And what the
06:27Supreme Court held in an opinion famously joined by Justice Scalia is that when the government is
06:33prosecuting flag desecration because of the message that it sends, because it's disrespecting the flag,
06:39which is exactly what President Trump is talking about here, that that is viewpoint discrimination.
06:44And that goes to the heart of what the First Amendment is all about, which is it's a restriction
06:48on the government's ability to punish people for expressing disfavored views. As the Supreme Court
06:53once said, if there's anything star in our constitutional constellation, it's that no official
06:58higher petty can prescribe what shall be orthodox in matters of politics. So applying that principle
07:03in the context of flag burning, the court held that the government can't punish people when they
07:09disrespect the flag. Now, that government can still punish people when they burn things in public,
07:14as I mentioned earlier, right? So if there's a neutral law that says you can't burn things in a
07:19public place, the government can still prosecute that even when being burned is a flag. But the
07:24government can't target flag burning because of the message that it sends. That's what the Supreme
07:28Court held in Johnson.
07:31So does it stand to reason, then, that this executive order could be considered by the Supreme Court,
07:37because it appears to be challenging that Supreme Court ruling?
07:41I think the most likely scenario here is that the government is going to start bringing
07:45prosecutions against people who are engaged in flag burning, and they're going to raise these
07:51selective prosecution defenses. They're going to say, I was targeted not because I violated this
07:56ordinance, but because of the message that my activity sent. And the government can't target me,
08:01regardless of whether they violated the statute. The government can't target them for their speech.
08:06I don't even know it'll get to the Supreme Court, because frankly, the law in this is so well
08:10established that I think that the lower courts will pretty robustly hold that the government
08:16can't do what President Trump is instructing federal prosecutors to do here.
08:20Now, already within 24 hours of this executive order being signed, we have seen a flag burning
08:26incident. NBC News reported that a man was arrested and identified himself as a combat veteran
08:32and said he was burning the American flag in protest of the executive order that Trump signed.
08:38What do you make of this arrest? And could this executive order spark even more instances of flag
08:45burning? So I can't depend on the specifics of this individual arrest. What I can say is that I think
08:50this executive order is going to have its intended effect, which is it's going to inspire a lot of
08:56people to engage in flag burning to protest the executive order, which is probably in some level what
09:00President Trump wants, right? He wants to create a distraction. He wants to create political battles
09:06that distract public attention away from the numerous scandals plaguing his administration.
09:11That's what this executive order is designed to do.
09:13What is the ACLU's response to this executive order? And also, what is the response you've seen
09:19from your colleagues, from people in public in the last 24 hours? Are people broadly pro, broadly con?
09:26Is there a public opinion that's beginning to coalesce?
09:30I think that civil libertarians and people in the First Amendment community across the political
09:37spectrum are all incredibly dismissive of this executive order. They understand that it flies in the face of
09:4330 years of bedrock First Amendment law. They understand that it's a political stunt by the Trump
09:49administration. And like so many political stunts of this administration, I expect it will soon be
09:53forgotten by the public and by federal prosecutors. And it will be swept away as we move on to the next
09:59outrageous thing President Trump does.
10:02So in the context of America 2025, where does this executive order land in terms of importance?
10:10Because we've seen some other actions from the federal government that would appear to seek to limit
10:16freedom of the press, free expression. Is this part of that? Or is it, as you say, a political stunt?
10:25I think this is part of a broader campaign by the Trump administration to undermine the robust
10:32free expression principles that have been built up by both sides of the political aisle, frankly,
10:36over the past 50 years. And this is an attempt to turn this into some sort of partisan fight.
10:41Unlike some of the other campaigns that the Trump administration ended up awaiting, for example,
10:47its attempt to deport students and scholars on the basis of their protected speech, I think that this
10:54one is really a political stunt by the administration that does not have a lot of gas in it. I don't think
11:02that it's going to be robustly enforced at all. I think federal prosecutors understand that targeting
11:07people on the basis of their protected speech for federal prosecution is a flagrant First Amendment
11:12violation. And I don't suspect that they are going to robustly enforce this executive order.
11:18So if the reaction to this executive order is broadly dismissive, Brian, what are you spending most
11:23of your time at the ACLU focusing on? And what should the Forbes audience spend their time paying
11:29attention to when it comes to the issue of First Amendment rights and free speech?
11:33I think there are numerous areas where the Trump administration is attacking First Amendment
11:38rights. Some of the most obvious ones are its attempt to impose sanctions on law firms that
11:44represent clients or causes that are disfavored by the administration. Those attempts are also
11:49blatantly unconstitutional. They were roundly rejected by every single federal court that's considered
11:54a case challenging those executive orders. But the chilling effect that those executive orders have had
11:59on the legal profession has been profound. And the danger that that poses to an independent bar and
12:05an independent judiciary in the functioning of America's legal system is very grave indeed.
12:11Similarly, I think President Trump's attacks on universities, denying hundreds of millions of
12:15dollars in funds unless universities tow the administration's preferred ideological line
12:20represents a profound threat to principles of academic freedom that have made America's
12:25universities, the envy of the world. And finally, I think the very pervasive way that the
12:31administration has been targeting non-citizens on the basis of their protected expression for
12:36deportation and for detention, throwing people like Mahmoud Khalil, Ramesh Ozturk, these students at
12:44America's universities in detention facilities thousands of miles away from their home, simply because they're
12:49engaging in protected protest. I think that represents a profound threat to basic civil discourse in this
12:56country. And I should say, and they have just a full disclosure, that Faisal U represents Mr. Khalil and Ms.
13:02Ozturk and several other of the students who are being targeted by the administration on these grounds.
13:08But those are our campaigns where I think the administration has committed to trying to roll back
13:13fundamental First Amendment freedoms. In this case, I think there's no chance the administration is going
13:20to commit to this phony war.
13:24No chance the administration commits to this phony war. So if you're reading the tea leaves, what happens
13:29next when it comes to this executive order around flag burning? Does it just go away, get ignored, enforced a
13:36little bit, but other executive orders and administration action gets the attention? What's your prediction here?
13:44There may be some federal prosecutors who attempt to curry favor with the Trump administration by
13:48making prosecutions in line with this executive order. But functionally, what this executive order
13:53has done has made it harder for any federal prosecutor to bring a prosecution on the basis that
14:00someone has burned an American flag. Because now any defendant who faces one of these prosecutions is
14:04going to have a very robust defense to come into court and say that they're being selectively
14:09prosecuted for their protected expression pursuant to this unconstitutional executive order.
14:14And so that's just actually going to make flag burning prosecutions of any type much, much more difficult for
14:19federal prosecutors in the medium term.
14:22We've covered a lot of ground. Is there anything else, Brian, that you wish for the Forbes audience to know or
14:29understand about this executive order or the Trump administration's position when it comes to the
14:33First Amendment in 2025?
14:34I think the most important thing for the Forbes audience to understand is that the First Amendment will
14:42continue to apply regardless of what the Trump administration says. President Trump is not the
14:46last word on our constitutional rights. We, as a country, get to decide what the Constitution means,
14:53and we do that by exercising our rights every day. And it's important not to be chilled by the president's
14:59stunts.
15:00Brian House, Senior Staff Attorney for ACLU's Speech Privacy and Technology Project. Thank you so, so much
15:08for joining us and providing us with your insight. We really appreciate your time.
15:11Thank you for having me.
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