00:00I'm Maggie McGrath, senior editor at Forbes. On Monday, President Trump signed an executive order
00:06saying that to burn an American flag is an act that could be prosecuted to the fullest extent
00:14of the law. This is drawing lots of questions from First Amendment advocates. And joining us
00:19now to break down what it all means is Brian House. He is a senior staff attorney with the
00:25ACLU's Speech, Privacy, and Technology Project. Brian, thanks so much for joining us.
00:31Thanks for having me.
00:32So I want to read you part of this executive order. This, I will emphasize, is just a portion
00:38and not the entire thing. But the executive order that Trump signed reads in part,
00:43My administration will act to restore the respect and sanctity of the American flag
00:49and prosecute those who incite violence or otherwise violate laws while desecrating the
00:56symbol of our country to the fullest extent permissible under any available authority.
01:03There's a lot to unpack here, but broadly, can you break down what this executive order means?
01:09Essentially, what the executive order does is instruct federal prosecutors to abuse their
01:15discretion and look for excuses to charge people who are engaged in acts of flag burning.
01:22Now, it's important to clarify here that the executive order does not and cannot create a new
01:28federal crime. Congress writes the criminal statutes, not the president. And the Supreme Court
01:33held about 30 years ago that the First Amendment prohibits the government from criminally punishing
01:39burning of the flag or desecrating the flag because of the message that it sends.
01:43So that's not what President Trump is doing here. Instead, what he's doing is he's instructing
01:47federal prosecutors to look for excuses to charge people who are engaged in flag burning
01:52when the real motivation behind it, as the executive order makes clear, is the message that they're
01:57sending. I have a lot of follow-up questions to what you just said, but just to be very clear and
02:02perhaps a little pedantic here, is what this executive order is saying, is that a violation of the
02:09First Amendment? What the executive order is doing does violate the First Amendment because it's
02:14instructing federal prosecutors to target people on the basis of their protected expression. This is
02:20what's known as selective prosecution, right? So if a federal prosecutor is charging someone with a
02:26crime, even if they violated a statute, if the motivation behind the charging decision is
02:31impermissible, for example, because they're a Democrat or because of their protected expression,
02:36they can raise what's known as a selective prosecution defense, essentially saying that
02:39the real motivation for their prosecution is their speech and not any unlawful conduct that they might
02:45be engaged in. That's exactly what this executive order is instructing prosecutors to do.
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