Brian Hauss, a senior staff attorney at the ACLU, joined Forbes senior editor Maggie McGrath on "Forbes Newsroom" to discuss President Trump's flag-burning executive order.
00:00The other piece of language that was interesting to me in the executive order is that under any available authority, that feels very specific to me, but I am not a lawyer.
00:11Did that stand out to you? And does that mean that federal agents could go after someone in a way that state agents would not? Is there a difference there?
00:19So federal agents and state law enforcement officers do enforce different authorities. Federal law enforcement officers enforce federal statutes. State law enforcement officers enforce state criminal laws.
00:31In this case, what the executive order is telling federal prosecutors to do is look for any excuse. Let's say there's a federal ordinance that bans burning anything outdoors in a public park, right?
00:42And it's saying you can apply that ordinance. Maybe you wouldn't apply it in certain circumstances. Maybe you would enforce it in others.
00:49What I really want you to do is kick anybody who's burning an American flag in a public park up to the front of the line.
00:55And so while the government can neutrally enforce those statutes, right, it can say it can make it a crime to burn things in certain public places.
01:05What it can't do is target someone for burning something because of the message that it sends.
01:10And that's what the executive order is telling prosecutors to do. It's saying apply these statutes unequally to people on the basis of the message that they're trying to send.
01:19And supporting what you just said, when he signed the executive order, Trump did say, quote, when you burn the flag, it incites riots at levels we've never seen before.
01:31So in the president's view, is he trying to tamp down protests?
01:37I mean, that's just pure rhetoric on the president's part.
01:41I think what he's referring to there is what's known as the incitement standard, right?
01:45There are certain circumstances. Speech is not protected when it incites unlawful violence.
01:49But the Supreme Court has applied a very, very robust First Amendment test to determine when something meets the definition of incitement, precisely because laws that enable the government to prosecute incitement have a very strong danger of being used to silence political protest.
02:06And so the Supreme Court has said that incitement can only be prosecuted when it's intended to incite unlawful violence and when there is an objective likelihood that it will incite imminent unlawful violence.
02:17And the fact of the matter is the vast majority of circumstances where someone's burning a flag, even the American flag, it's not likely to incite imminent unlawful violence, and it's not intended to do so.
02:27And so the incitement statutes really have no application there.
02:30But even in those circumstances where the speech is unprotected, if the government is targeting that speech specifically because of the message it's sending, unrelated to whether it's incitement or whether it's a threat or something like that, but just because the government doesn't like the viewpoint of the person saying it, that still violates the First Amendment.
02:48Even with regards to unprotected speech, the government can't single out specific viewpoints for special punishments.
02:54And again, that's exactly what this executive order does.
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