From LifeSiteNews

By Calvin Freiburger

Trump’s latest executive order started a debate among conservatives about free speech and the limits of executive power.

President Donald Trump set off a brand new debate about free speech and executive power Monday with an executive order concerning the burning of the American flag, complicated all the more by comments declaring it went much further than the actual text.

The order tasks the U.S. Attorney General with “prioritiz[ing] the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment,” such as violent crimes, hate crimes, “open burning restrictions, disorderly conduct laws, or destruction of property laws.”

It also requires the blocking or termination of “visas, residence permits, naturalization proceedings, and other immigration benefits” of foreign nationals who “have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.”

The order essentially just tasks federal law enforcement with reviewing cases for instances in which the American flag is desecrated in the course of committing an established crime. However, speaking to the press from the Oval Office before signing it, the president claimed it would do something far more dramatic.

After panning the U.S. Supreme Court’s 5-4 ruling in 1989’s Texas v. Johnson that deemed flag-burning a form of protected speech as a “very sad court,” Trump claimed that flag-burning “incites riots at levels that we’ve never seen before.”

Therefore, he said, “what the penalty is going to be if you burn a flag, you get one year in jail. No early exits, no nothing. You get one year in jail, if you burn a flag, you get — and what it does is incite to riot — I hope they use that language … incite to riot and you burn a flag, you get one year in jail, you don’t get ten years. You don’t get one month. You get one year in jail. And it goes on your record.”

Contrary to Trump’s declaration, his order does not make flag-burning a standalone federal crime or define any penalty for it. Constitutionally, executive orders can only direct the implementation of existing laws or federal rules under delegated authority. Creating all-new federal crimes and punishments are powers reserved for the lawmaking branch of the federal government, Congress.

Confusion about the order itself aside, it sparked a debate about the underlying issue of flag-burning and whether it should be protected as freedom of expression. The Johnson precedent, in which stalwart conservative Justices Antonin Scalia and William Rehnquist landed on opposite sides, has not been seriously challenged in more than three decades, but some prominent MAGA figures followed Trump by declaring their opposition to it.

“Antonin Scalia was a great Supreme Court Justice and a genuinely kind and decent person,” Vice President JD Vance said, but “Texas v. Johnson was wrong and William Rehnquist was right.” Human Events senior editor Jack Posobiec claimed the First Amendment was only meant to protect literal “’speech,’ meaning spoken or written,” and not the broader category of expression (a standard which could weaken protections against being forced to create other forms of non-speech expression, such as LGBT cakes).

Others expressed their disapproval. Libertarian Rep. Thomas Massie (R-KY) said flag-burning is “covered by the First Amendment to the United States Constitution.” National Review legal analyst Andy McCarthy said the order was “ill-conceived” in its attempt to tie flag-burning to “incitement.” Stanford and UCLA law professor Eugene Volokh predicted the order would be deemed a “a content-based, indeed viewpoint-based, enforcement policy” and would therefore be struck down.

Still more tried to split the difference, not endorsing Trump’s position while attempting to minimize its significance and/or claim it was yet another multi-level chess move. Daily Wire reporter Ryan Saavedra surmised that Trump “knows it’ll get shot down in court but it will stoke Democrats into torching American flags going into the midterms and the people will be repulsed seeing that.”

“Anti-woke” journalist Chris Rufo said he was “sympathetic to the argument that burning the American flag is protected speech,” but was “not going to work myself into a state of hysteria about Trump’s executive order” while localities were punishing people for destroying LGBT “pride” flags. Many replied that while left-wing officials often pursue inflated punishment for damaging LGBT symbols such as “hate-crime” enhancements, the fundamental legal question is whether someone is destroying a flag they own or vandalizing someone else’s property.

Regardless, taking a stand against flag-burning has long been a popular move for politicians, with prominent Democrats such as Hillary Clinton and Joe Biden having advocated bans in the past.

“In a 2021 poll from the Knight Foundation and Ipsos, only 31% of Americans agreed that people should be allowed to burn the American flag,” CNN reports. “More recently, two-thirds of Americans said in a YouGov/CBS poll published in July that flag burning should be against the law. Back when the Supreme Court ruled that flag burning was protected speech, it was an unpopular decision. More than two-thirds of Americans supported a constitutional amendment to outlaw flag burning, according to polling at the time, although only a minority saw that issue as a very important one.”