President Donald Trump has signed a new executive order that would make burning the American flag a crime. Lastly, sir, this is an executive order on flag burning. It charges your attorney general. Would you listen to this? This is not happening. Flag burning. All over the country, they’re burning flags. It’s a bold move, one that immediately sparked fierce debate, and one that legal experts say is likely to be short-lived in the courts. The executive order, signed earlier today, directs federal agencies to seek penalties, including fines and possible jail time, for anyone convicted of deliberately setting fire to the American flag.

What the executive order does, sir, it charges your Department of Justice with investigating instances of flag burning. And what the penalty is going to be, if you burn a flag, you get one year in jail. Supporters say it’s about defending a cherished national symbol. But critics warn it’s a direct challenge to free speech rights guaranteed under the First Amendment. This is not the first time flag desecration has tested America’s legal boundaries. In fact, the Supreme Court decided this issue more than three decades ago. In 1989, in a landmark case called Texas First Johnson, the court struck down a Texas law that made it illegal to burn the flag.

The justices ruled five to four that flag burning is a form of symbolic speech, and therefore protected under the Constitution. That ruling was controversial then, and it remains controversial now. At the time, President George H.W. Bush called for a constitutional amendment to ban flag burning, while members of Congress rushed to introduce legislation. Yet, again and again, courts reaffirmed that the First Amendment protects even the most offensive forms of expression. On Wednesday morning, the Supreme Court issued a decision which held that a person could not be convicted for desecration of our flag, American flag.

Because to do so would infringe upon the right political protest. Now we’ve got to be very careful in our society to preserve the right to protest government action. However, I believe that the flag of the United States should never be the object of desecration. Flag burning is wrong. Protection of the flag, a unique national symbol, will in no way limit the opportunity nor the breadth of protest available in the exercise of free speech rights. And I have the greatest respect for the Supreme Court, and indeed for the justices who interpreted the Constitution as they saw fit.

But I believe the importance of this issue compels me to call for a constitutional amendment. Support for the First Amendment need not extend to desecration of the American flag. One of the most notable defenders of the a conservative icon appointed by President Ronald Reagan. Scalia made it clear that while he personally despised flag burning, his duty as a justice was to the Constitution, not his own preferences. He famously said, quote, if it were up to me, I would jail every scruffy bearded weirdo who burns the American flag, but I am not king.

End quote. That blunt acknowledgement captures the tension at the heart of this debate. Flag burning is offensive to many Americans, but offense alone is not grounds for government punishment. As Scalia himself underscored, the Constitution protects freedom of speech precisely when it is unpopular. If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment which says that the right of free speech shall not be abridged. And it is addressed in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.

Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore. Burning a flag is a symbol that expresses an idea. The political impact, however, may be just as significant as the legal one. By issuing this order, President Trump is appealing directly to his base, many of whom view the flag as sacred and flag burning as an attack on American values. His supporters argue that the act of burning the flag is not speech, but a desecration, and that the government has a duty to protect its most important national symbol.

But opponents counter that patriotism cannot be compelled by law. They argue that true loyalty to the flag lies in defending the freedoms it represents, especially the freedom of expression. As one commentator put it today, the flag stands for liberty. If we punish people for burning it, we risk betraying the very ideals it symbolizes. For now, the executive order has set the stage for another major constitutional battle. Legal challenges could take months, even years, to work their way through the courts. But if history is any guide, the outcome is predictable. The Supreme Court has been here before, and it has consistently ruled that flag burning, however offensive, is protected speech.

And so tonight, the United States once again finds itself at the intersection of patriotism and liberty. On one side, a president demanding greater respect for the flag. On the other, a constitution that demands greater respect for free speech. As Justice Scalia’s words remind us, no president, no Congress, and no majority can silence expression simply because it offends. That principle, as controversial as it may be, remains the law of the land. [tr:trw].

See more of Judge Napolitano – Judging Freedom on their Public Channel and the MPN Judge Napolitano – Judging Freedom channel.