Sunrise flags

I previously wrote about the allure sheer power held when I held more conservative views, and how I think this shapes modern party discourse. The White House recently issued an executive order (EO) criminalizing the burning US flags, which I think highlights this example perfectly. This EO seeks to undermine public faith and perception of free speech by conflating it with spectacle and controversy.

A short recap of flag burning

In 1984, Gregory Lee Johnson burned a flag outside the Republican National Convention. Originally fined and prosecuted, his case shot up to the Supreme Court, which ruled that burning the flag was “protected speech” under the First Amendment. Shortly after, in a follow-up ruling related to Texas v. Johnson, United States v. Eichman prohibited Congress from enacting laws punishing the burning of flags.

The significance of these rulings cuts to the heart of the purpose of the First Amendment; it exists in large part specifically to protect uncomfortable, anti-government speech. The outcome of Texas v. Johnson was controversial in its time, and continues to be today. Whether someone can separate their feelings on the purpose of free speech versus the content of free speech tells a lot about their intentions and principles.

Hypocrisy is half the point

In 2008, Hudson High School settled a lawsuit on First Amendment grounds because a student’s Conservative Club posters were being torn down around the school. The posters contained a link to a site which displayed videos of beheadings, and though teachers argued that the posters were torn down to protect students from viewing them, this argument was rejected by a judge, because they could not prove that the mere existence of the link to graphic content was itself a disruption. And that was the correct ruling. This was a victory for the First Amendment, championed by a Massachusetts conservative.

You’re going to see people on social media, mainstream news outlets, and opinion pieces complaining that the same crowd which just spent a presidential term bemoaning “cancel culture” is now being “hypocritical” in light of this EO. Speaking as someone who used to be active in those circles: They. Do. Not. Care. You are not going to rattle mainstream conservatives by pointing out that they are inconsistent. They’ve been inconsistent before, if it achieves a greater purpose; I’ve given examples of this in the past, such as in 2020, when they took a pro-police, anti-reform stance after decades of promoting the virtues of small government, resisting govrenment tyranny, and legal firearm ownership.

What gets through

To supporters, this EO looks like a patriotic measure to prosecute anti-American sentiments (even if, I contend, expressing anti-American sentiments is an American thing to do). Anti-American sentiments feel like an attack on the self.

To navigate this, consider that the EO doesn’t actually criminalize burning the flag itself (as to do so would be illegal per the aforementioned SCOTUS rulings):

The Attorney General shall prioritize 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.

This is toothless in the face of just burning a flag. It can only prosecute it in tandem with other crimes (which are already illegal). The intent of this EO is to fool people with spectacle over substance and erode public trust in what the First Amendment protects.

Don’t engage by pointing out rhetorical flaws and inconsistency–it doesn’t stick. The key here is that this EO is meant to mislead all Americans, and we are collectively weaker as a population if free speech can be attacked under any administration, even if we align with the current partisan slant.