“If it were up to me,” Supreme Court Justice Antonin Scalia famously told a group of students in 2015, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”

The late justice was referring to the majority opinion in Texas v. Johnson, the 1989 decision he joined that found flag desecration was constitutionally protected speech. The case revolved around a lifelong commie weirdo named Gregory Lee Johnson, who was convicted of desecrating an American flag during an anti-Ronald Reagan protest outside the 1984 Republican National Convention in Dallas. Johnson was sentenced to one year in jail under Texas law.

The state argued that it had a compelling interest in preserving revered national symbols. In his dissent, Chief Justice William Rehnquist argued that the flag was not merely an “‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas” but a symbol that binds a nation’s people.

The majority, however, reasoned, in my humble view correctly, that the “bedrock principle” underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds it “offensive or disagreeable.” The Supreme Court has long held that First Amendment protections extend to symbolic acts.

Which brings us to President Donald Trump’s signing this week of an executive order directing the Justice Department to pursue criminal penalties against those who desecrate an American flag.

“All over the world they burn the American flag,” Trump said. “The people in this country don’t want to see our American flag burned and spit on, and by people that are, in many cases, paid agitators.”

Sorry, your free expression rights do not hinge on whether you are paid or whether you protest gratis. And the president has no say in how we express ourselves. All over the world, including in most European nations, the burning of flags is illegal because the law places the reverence of the state above the rights of the individual. Not here.

In truth, Trump’s executive order only asks Attorney General Pam Bondi to prosecute those who burn or desecrate the American flag in ways that cause “harm unrelated to expression, consistent with the First Amendment.” Which is to say, Trump only wants people to believe he’s ignoring the Supreme Court. Or perhaps he wants to relitigate the issue despite long-standing precedent.

Then again, I’m relatively certain the most vital purpose of the executive order is to goad Democrats into self-defeating reactions as the midterm elections approach.

On that front, Trump has a decent chance of success. A few weeks ago, the president dispatched the National Guard to Washington, D.C., persuading half the Democratic Party to go on television and argue that crime rates weren’t really a problem for average Americans. No doubt, the president hopes the new executive order will provoke progressive Democrats to champion the finer points of burning Old Glory.

It would not be surprising if Black Lives Matter, antifa and pro-Hamas types take the bait. One yahoo desecrating a flag was already arrested in front of the White House on Monday.

Defending the ungrateful scum that burns flags is a daunting political position even on earnest principled grounds. As the executive order points out, it is “uniquely offensive and provocative.” And Democrats, who’ve spent years trying to ban and curb “misinformation” and “disinformation,” including creating an aborted Ministry of Truth, possess zero credibility as ethical defenders of free expression.

In turn, many on the Right who have spent years rightfully angered by the Biden administration’s administrative and bureaucratic censorship will cheer on the president’s edict.

These days, increasing numbers of people are under the impression that how you get what you desire doesn’t really matter. Neutral principles be damned.

It’s something of a trope (and I have probably used it in the past as well) that popular speech doesn’t really need protection. That’s not exactly true. As we saw during COVID-19, relatively popular ideas are also under fire. If it weren’t popular, it wouldn’t matter as much to those in power. Yet, it is also certainly true that the most unpopular speech deserves the same protections.

So yes, to some extent, Trump’s edict is a distraction. But many people seem to believe presidents can unilaterally accomplish things they aren’t empowered to do. Like, for instance, banning protected speech.

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