I am late to talking about the new E.O. prioritizing prosecution of flag burning. It purports to get around Johnson and Eichman by pursuing flag-burning that constitutes fighting words or incitement or that violates content-neutral laws, including civil rights and discrimination laws. Mike Dorf, Keith Whittington, and Ken White analyze.
Mike and Ken come at the incitement/fighting words point different ways. Ken argues that Johnson and Eichman rejected the idea that burning a flag can ever be fighting words (not a face-to-face insult) or incitement (because it only could incite someone to attack the burner, which is not what incitement is concerned with). Mike relies on RAV for the proposition that laws (including the E.O.) cannot target a subset of unprotected speech based on the expression of the incitement. A law cannot target only fighting words involving cross-burning (the law in RAV) or only incitement through flag burning (the E.O.). I think both analyses are correct.
As for the civil rights/discrimination point, the same would seem to apply. Mike’s application of RAV carries to that–the law cannot target only discrimination-by-flag-burning. And I doubt that flag burning could constitute discrimination, at least independent of the expressive nature of the burning and the message it sends.
Keith highlights § 2(c), calling on the AG to “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Keith points out, correctly, that these efforts likely will fail, because the First Amendment is clear about protection for flag burning and this Court does not seem inclined to undo that. So Keith is correct that this will not go anywhere. But it reflects a nice bit of judicial departmentalism, calling on the AG to pursue prosecutions to give the courts an opportunity to reconsider or rework precedent (although he does not call for a direct challenge, only “clarification”).
I wonder how he squares that with SG Sauer’s concession and FN 18 in CASA.
Posted by Howard Wasserman on August 26, 2025 at 10:30 AM