Brian Hauss, a senior staff attorney at the ACLU, joined Forbes senior editor Maggie McGrath on "Forbes Newsroom" to discuss the Supreme Court's previous ruling on flag burning.
00:00Now, you mentioned the Supreme Court case. Is that the Texas v. Johnson case from 30 years ago? And if so, can you talk about what that case, the precedent that established and what this executive order means for that precedent?
00:14Sure thing. So Texas v. Johnson concerned a challenge to Texas's flag desecration statute. Texas, like almost every other state in the country at that time, had laws that prohibited desecrating the American flag. And somebody who earned the American flag in protest was prosecuted under that statute, and he appealed his conviction all the way up to the Supreme Court.
00:36And what the Supreme Court held in an opinion famously joined by Justice Scalia is that when the government is prosecuting flag desecration because of the message that it sends, because it's disrespecting the flag, which is exactly what President Trump is talking about here, that that is viewpoint discrimination.
00:54And that goes to the heart of what the First Amendment is all about, which is it's a restriction on the government's ability to punish people for expressing disfavored views.
01:02As the Supreme Court once said, if there's any fixed star in our constitutional constellation, it's that no official, high or petty, can prescribe what shall be orthodox in matters of politics.
01:12So applying that principle to the context of flag burning, the court held that the government can't punish people when they disrespect the flag.
01:20Now, that government can still punish people when they burn things in public, as I mentioned earlier, right?
01:25So if there's a neutral law that says you can't burn things in a public place, the government can still prosecute that even when being burned is a flag.
01:34But the government can't target flag burning because of the message that it sends.
01:37That's what the Supreme Court held in Johnson.
01:40So does it stand to reason then that this executive order could be considered by the Supreme Court because it appears to be challenging that Supreme Court ruling?
01:50I think the most likely scenario here is that the government is going to start bringing prosecutions against people who are engaged in flag burning, and they're going to raise these selective prosecution defenses.
02:03They're going to say, I was targeted not because I violated this ordinance, but because of the message that my activity sent.
02:09And the government can't target me, regardless of whether they violated the statute.
02:13The government can't target them for their speech.
02:16I don't even know it'll get to the Supreme Court because, frankly, the law in this is so well established that I think that the lower courts will pretty robustly hold that the government can't do what President Trump is instructing federal prosecutors to do here.
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