A Constitutional Challenge to Free Speech and the American Ideal

The recent order addressing flag burning may be an attempt to overturn Supreme Court precedent protecting it as free speech. However, this is unlikely, as the proposed actions would likely be deemed unconstitutional.

The Supreme Court has consistently protected flag desecration as free speech, as seen in cases like Texas v. Johnson. The new order attempts to circumvent these rulings by focusing on actions that violate content-neutral laws, but the increased penalty makes it content-based and thus unconstitutional.

The order's core purpose is content-based, as it declares flag burning "uniquely offensive." The true test of free speech is defending speech considered offensive.

This position has been upheld by the Supreme Court, including by Justice Scalia, who voted to protect flag burning. He emphasized that the First Amendment protects speech critical of the government.

Conservatives have long opposed laws that target specific viewpoints. The implications of laws enhancing penalties for selective speech are significant.

In R.A.V. v. City of St. Paul, the court struck down an ordinance that focused on fighting words based on specific characteristics.

This type of prosecution has spread across Europe, where free speech is in decline.

Flag burners can still be prosecuted for violating neutral laws. Otherwise, a constitutional amendment might be sought.

Defending free speech often requires defending those whose views we despise. We do not need the First Amendment to protect popular speech.

The new order is a fight Trump likely believes he cannot lose. However, we should defend the rights that define us.

Free speech is the essential American right. It would be ironic to protect the symbol of our nation by destroying the core rights it represents.