Tangle - Should flag burning be illegal?

Starting point is 00:00:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon and good evening and welcome to the Tangle podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about desecrating the American flag. Whether flag burning is illegal, should be illegal, covering Donald Trump's executive order, the president has instructed the attorney general to start prosecuting unlawful acts that involve desecrating the American flag.

Starting point is 00:00:48 We are going to break down exactly what the order says and whether it is going to hold up. Today is Thursday, August 28th. And before we jump in, I want to give you a quick heads up that on our YouTube channel, we just uploaded our latest interview, and this is actually from the time that we spent with Representative Jake Ockinclough. So you guys have been hearing a lot about the documentary we did on our three days

Starting point is 00:01:11 with Representative Alkencloss, the Democrat from Massachusetts. While we were down there, you'll see in the original video we released, we got a surprise visitor, Representative Dusty Johnson, the Republican from South Dakota, who is one of the most influential conservatives in the house.

Starting point is 00:01:26 I got to sit down with Johnson and Alkencloss for a 30-minute interview, and just a tiny snippet of that interview was included in our documentary. So today, we're actually releasing the full conversation as its own separate video. It includes questions about how these two representatives have remained friends in our ever-divided world, what kinds of issues they actually work on together and the places that they disagree. It's a really interesting interview. I thought it was a great video. I was super excited to watch it today because it had been a couple months since I conducted

Starting point is 00:01:58 the interview, so it's fun to go sit down and watch it again. And I think it's an interesting look at how bipartisanship actually works in Congress right now, despite all the brokenness and divisiveness that we have. So go to our YouTube channel, Tangle News on YouTube, check it out. Don't forget to like and subscribe to the video and the channel that'll teach the YouTube algorithm that you want more of that. And I hope you enjoy. All right, with that, I'm going to send it over to John, and I'll be back for my TIG. Thanks, Isaac, and welcome everybody. Here are your quick hits for today.

Starting point is 00:02:36 First up, a shooter killed two children and injured 17 others at a church of Minneapolis, Minnesota. The shooter died by suicide. FBI director Cash Patel said the Bureau is investigating the incident as an act of domestic terrorism and a hate crime against Catholics. Number two, the White House fired Susan Menares, director of the Centers for Disease Control and Prevention, just weeks. weeks after she was confirmed to the position. Menares reportedly resisted pressure to step down after refusing to agree to rescind certain approvals for COVID vaccines. Her firing prompted the resignation of the agency's chief medical officer

Starting point is 00:03:11 and other key officials at the agency. Number three, Transportation Secretary Sean Duffy said his department plans to take over management of Washington, D.C.'s Union Station, saying he believes the agency can better manage the situation. Washington Mayor Muriel Bowser endorsed the move. Number four, the United Kingdom, France, and Germany are expected to begin reimposing United Nations sanctions on Iran over its alleged violation of a 2015 deal that sought to curb Iran's nuclear program. And number five, the United States' 50% tariffs on Indian imports took effect on Wednesday. President Donald Trump doubled the tariffs from an initial 25% rate in retaliation for India buying Russian oil.

Starting point is 00:03:58 Lastly, sir, this is an executive order on flag burning. It charges your attorney general. Would you listen to this? This is very important. Flag burning. All over the country, they're burning flags. All over the world, they burn the American flag. And as you know, through a very sad court, I guess it was a five to four decision.

Starting point is 00:04:22 They called it freedom of speech. But there's another reason, which is perhaps much more important. It's called death. Because what happens when you burn a flag is the area goes crazy. If you have hundreds of people, they go crazy. You can do other things. You can burn this piece of paper. But when you burn the American flag, it incites riots at levels that we've never seen before.

Starting point is 00:04:48 People go crazy. In a way, both ways. There are some that are going crazy for doing it. There are others that are angry, angry about them doing it. President Donald Trump signed an executive order instructing the Attorney General to prosecute unlawful acts that involve desecrating the American flag. The order also directs the Attorney General to refer acts involving flag destruction that may violate state or local laws to the relevant local authorities. Separately, it calls for litigation to clarify the extent

Starting point is 00:05:18 of First Amendment protections for such acts. While signing the order, President Trump said that those who violate the order will face one year in jail, though the order itself does not stipulate this. For context, in Texas v. Johnson in 1989, the Supreme Court ruled five to four that burning the American flag is a constitutionally protected act of political expression. The majority found that flag burning is a form of symbolic speech and thus covered by the First Amendment. In a dissenting opinion, Justice John Paul Stevens argued that the government could outlaw flag burning because of the flag's unique symbolic status in the United States. In 1990, the same five Justice Majority voted to strike down a law passed by Congress, criminalizing the conduct of

Starting point is 00:06:03 anyone who knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon a U.S. flag. President Trump's executive order does not ban flag burning or other acts of flag desecration outright. Instead, it targets those who vandalize the flag in a manner that is likely to incite imminent lawless action. It lists violent crimes, hate crimes, and a legal discrimination against American citizens as examples of such action. Separately, the order instructs various federal agencies to deny, prohibit, terminate, or revoke visas and other immigration benefits for foreign nationals who desecrate the flag. After the order was signed on Monday, federal authorities arrested a man who set an American

Starting point is 00:06:45 flag on fire across the street from the White House. The man claimed to be a 20-year-old combat veteran, and he said he was burning the flag in protest of the executive order, according to a video of the incident. Park Police said they arrested the man for violating a statute that prohibits lighting a fire in a public park. Many legal scholars have suggested the order could violate the First Amendment, and the Foundation for Individual Rights and Expression, a non-profit focused on defending civil liberties, criticized it in a statement writing,

Starting point is 00:07:14 while people can be prosecuted for burning anything in a place they aren't allowed to set fires, the government can't prosecute protected expressive activity, even if many Americans, including the president, find it uniquely offensive and provocative. Today, we'll break down the debate over desecrating the American flag with views from the right and the left, and then Isaac's take.

Starting point is 00:07:39 We'll be right back after this quick break. All right, first of Blitzhuber, what the right is saying. The right is mixed on the order, with some saying it properly distinguishes between protected and non-protected speech. Many, however, suggest it runs afoul of the Constitution. Others suggest the Supreme Court is likely to side with a challenge to the order. In Newsweek, Josh Hammer argued flag burning is not protected speech. Trump's bold move is not merely symbolic. It's a restoration of allegiance to the foundational totems that unite us as people and a nation, Hammer wrote.

Starting point is 00:08:22 The American flag is not a mere inanimate banner. It is the embodiment of our national identity, the collective sacrifice of generations, and the unity of otherwise diverse peoples under shared principles and a shared polity. When reprobates desecrate the American flag, they assault not merely fabric, but our American heritage and way of life. By enforcing tangible consequences for such rogue behavior, President Trump sends a clear message. National unity requires national respect. Many legal critics are predictably howling, citing Texas v. Johnson, from 1989 and U.S. v. Eichmann in 1990. But Trump's executive order on its face only narrowly

Starting point is 00:09:01 targets actions that genuinely provoke danger, riot, or civil unrest, Hammer said. There is, or at least was intended to be, a massive First Amendment distinction between protected speech and non-protected conduct. That distinction has been blurred by decades of left-liberal and right-liberal constitutional jurisprudence. But the distinction remains for all who have any cursory familiarity whatsoever with the history and political theory of the American founding. In reason, Rabi Sov called the executive order unconstitutional. It's understandable why people don't like flag burning. The flag is a visual representation of the principles upon which America was founded, and when it's disrespected, many Americans take it as a sign that those values are

Starting point is 00:09:44 being treated with contempt, so have wrote. Free speech, though, is among the most fundamental American values of all. The right of Americans to speak their minds is enshrined in the First Amendment. Importantly, this right does not apply solely to benign, polite, socially acceptable speech. The executive order grapples with the actual existing court precedents in creative fashion, introducing the idea that while flag burning itself might be protected speech, flagburning that is likely to incite imminent lawless action could still be criminalized. This is true to the extent that incitement is one of the only exceptions to the First Amendment.

Starting point is 00:10:21 It isn't specific to flag burning, though. An expressive action that insights other people to engage in specific direct lawlessness might be outside the bounds of the First Amendment, whether or not the action has anything to do with the flag, so have said. The key word there is might, however. There's obviously a fundamental difference between engaging in speech to directly advocate for lawless action and burning the American flag. In Fox News, Jonathan Turley said the order sets up a big fight down the road.

Starting point is 00:10:49 road. The president might be hoping the Supreme Court might salute and reverse long-standing precedent declaring flag-burning to be protected speech under the First Amendment. If so, he's likely to be disappointed. The proposed prosecutions would be unconstitutional and absent and unlikely major reversal of prior precedent by the court. Flag-burning will remain a protected form of free speech, Turley wrote. Consider the implications of laws enhancing prosecution and penalties for selective speech. A liberal president could seek enhancements for views deemed hate speech or disinformation. Flag burners can still be prosecuted for burning material on streets or public property. However, those laws must be neutrally written and neutrally applied.

Starting point is 00:11:32 Otherwise, Trump and others could seek a constitutional amendment to create an exception for flag burning under the First Amendment, Turley said. This is never an easy fight for free speech defenders. No one relishes being accused of defending flag burners. However, free speech often demands that we fight for the rights of those we despise or views we deplore. We do not need the First Amendment to protect popular speech. All right, that is for what the right is saying, which brings us to what the left is saying. The left argues the order is unconstitutional, but many worry the Supreme Court could ignore precedent to a

Starting point is 00:12:16 hold it. Some note that the action tramples on traditional conservative views on free speech. Others suggest the order is toothless. In the nation, Ellie Mistal called the order a total setup. The order purports to restore respect and sanctity to the American flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country to the fullest extent permissible under any available authority, Mistal, read. A three-by-five-foot American flag, which Google tells me is a standard size for an American home, costs around 25 bucks on Amazon. I don't know a lot of people who are setting 20s on fire given Trump's economy, so I am confident we are not currently experiencing an epidemic of flag burning

Starting point is 00:12:58 such that we need an entire executive order to restore respect to the nylon. More likely, this executive order will create the problem it purports to solve. Flag burning was settled constitutional law, but that's not the whole story. The Supreme Court left a open the possibility that flag burning could still be criminal if it were likely to inspire imminent lawless action, Mistal said. The current Supreme Court has shown no respect for its own precedence, even the ones it laid down only a few years ago. This gang of Republicans masquerading as judges will have no problem overturning a 36-year-old case that their side only barely lost anyway. If the Republican supermajority wants to make flagburning unconstitutional, it certainly can.

Starting point is 00:13:42 The Washington Post editorial board wrote about Donald Trump versus Antonin Scalia. Trump's order targets flag burning for precisely the reason Scalia thought it was constitutionally protected because it is a statement of contempt for the United States, as the order puts it, the board said. Like both men, we find flag burning contemptible and understand the visceral emotion that virtually all Americans feel when they see old glory set ablaze. Scalia was correct, however, that the First Amendment protects contemptuous speech. Like many of Trump's executive orders, this one seems intended less for its policy effect than as a provocation. If left-wing activists start burning flags to make a point, they will play right into Trump's

Starting point is 00:14:22 hands. He wants to wrap himself in the American flag, the board wrote. The challenge for opponents of the president is to behave more like Scalia, that is, to project their patriotism while also refusing to yield on core constitutional rights. In TechDirk, Mike Maznick criticized Trump for criminalizing free speech. The executive order is so weak because, as it acknowledges, the Supreme Court has made it clear that the burning of the American flag is almost always protected expression under the First Amendment. It also highlights the point that flag burning is not just highly expressive,

Starting point is 00:14:55 but the fact that America allows for the burning of its flag as a form of speech highlights American ideals, Maznick said. Of course, the Maga crowd knows all of this even if they're pretending to forget it this week. You may recall that just last year, the Heritage Foundation chose to fly the American flag, upside down over its headquarters after Donald Trump was found guilty by a jury. The executive order pretends to get around all of this by pretending that it's only talking about unconstitutional versions of flag burning, which they claim are when it amounts to fighting words or likely to insult imminent lawless action, Masnick said.

Starting point is 00:15:29 This is constitutional nonsense on multiple levels. The fighting words exception has been effectively neutered by decades of Supreme Court decisions, and the Brandenburg eminent lawless action standard sets an incredibly high high bar that peaceful flag burning never meets. All right, let's head over to Isaac for his take. All right, that is it for it with the left and the right are saying, which brings us to my take. One odd reality of American politics is that most Americans greatly misunderstand our country. Perhaps my favorite chart illustrating this idea comes from U-Gov, which shows how we overestimate the size of minority groups and underestimate the size of majority groups.

Starting point is 00:16:21 For instance, U-Gov's chart shows that the true proportion of people in a household who have income over $1 million is basically 0%. It's less than 1%. But if you ask Americans, they'll estimate that 20% of Americans have household income over $1 million. If you ask Americans how many people in our country are transgender, the answer is typically about 20, 21% when the real proportion is 1%. So this is just to say Americans overestimate the size of many minority groups and they underestimate the size of many majority groups. One belief you could probably add to this list is the number of Americans who support burning the American flag. We see images of protesters or rioters burning the flag pretty regularly,

Starting point is 00:17:07 and I bet Americans would vastly overestimate the number of Americans who support this act. According to a CBS News poll, two-thirds of Americans think burning or destroying the flag should be outright illegal, while a third think it should be legal or protected speech. I suspect a tiny fraction of Americans, maybe 1% or less, would ever participate in the actual flag-burning protest or support one. Which is all just to say that burning or desecrating our flag remains a deeply unpopular act, that grates at my own personal sensitivities. Our flag evokes in me all the things I love about our country, a sense of unity, a duty, a freedom.

Starting point is 00:17:46 When I see the flag, I think of the Olympics and World War II and prosperity, not costly wars or corruption and gerrymandering. And when I see someone desecrating the flag, my emotional knee-jerk reaction is that I would feel perfectly all right if that person gets punished for it. But whether you bore a flag burning or not is a separate question from whether or not it should be protected speech. Here, the question is a lot more interesting.

Starting point is 00:18:09 The off-sighted Texas v. Johnson ruling that constitutionally protects flag burning as political expression was a narrow five to four decision because the question is quite difficult to navigate. Trump seems to be trying to avoid a direct confrontation with this ruling, crafting the executive order to narrowly apply to acts likely to incite imminent, lawless action. If Trump's goal is to prosecute more flag-burning down the road,

Starting point is 00:18:31 then this is smart. Incitement is a key crossroads where some speech loses its protection. The Texas v. Johnson case concerned a man who had burned a flag outside of City Hall to protest the Reagan administration. He wasn't inciting violence. He was just expressing his displeasure with the administration's actions. It would make sense if burning a flag in front of a crowd of people preparing a storm the White House is treated differently from someone lighting a flag on fire in their backyard. This incitement test applies to all speech. For instance, if I tell a friend that I hate my boss and want to hurt him, that is constitutionally protected. However, that same statement would not be

Starting point is 00:19:08 constitutionally protected speech if I say it to my colleagues and ask if they'll help me. The context matters, just as it does with flag burning, and Trump's executive order inches the line closer toward a prohibition. Ultimately, I think that line is not going to budge. One of the most critical sentiments that came from the Texas v. Johnson ruling was the now well-supported idea that the government doesn't get to determine meaning. In that case, the Supreme Court determined that state officials did not have the authority to determine that some symbols, like an American flag, could only be used to communicate a limited set of messages.

Starting point is 00:19:41 From the ruling, quote, if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. The jurisprudence of the decades since has fortunately supported more speech, not less. But the reaction to Trump's order certainly illustrates how the ground is moving under our feet on speech issues. The conservative podcast host Matt Walsh provides a very clear example. In 2019, Walsh said that flag burning is stupid and gross, but obviously it is free speech.

Starting point is 00:20:15 Adding that free speech doesn't include desecrating a piece of cloth is a really weird position that cannot be intellectually justified. This week, Walsh tweeted that the people who burn the flag are without exception degenerate communist filth, who want you and your family dead and your nation destroyed. You don't have to debase yourself by defending these scumbags just because five random Supreme Court justices in the 80s decided out of nowhere that burning the flag is a God-given right. The change in tone from Walsh is not only a great illustration of how conservatives like him have changed in the last six years,

Starting point is 00:20:48 it's also a great example of audience capture. People are allowed to change their minds, but Walsh went from holding an obviously conservative, limited government pro-speech position to a hate-filled screed that reduces the highest court in the land to five random justices from the 80s. It's a frightening turn, but he sure got a lot of likes and retweets for it. A surprising number of people on the MAGA right have also insisted that flag burning should be illegal because burning a pride flag or Black Lives Matter flag is also illegal. This is a salient comparison, but for the opposite of the intended reason. Burning those flags is also legal.

Starting point is 00:21:26 You can burn a pride flag or a Black Lives Matter flag a million times over and not face any charges. What you can't do is burn one of those flags in particular contexts. You can't steal someone else's flag and burn it. You can't burn it in a public place where fires are prohibited and you can't burn the flag in certain contexts where the act is motivated by hate. For example, I could burn a pride flag in my own backyard and upload a video expressing a viewpoint like I reject homosexuality without facing criminal charges. But if I uploaded the video with a message threatening to attack my gay neighbor, I'd be in big trouble. One of the most well-known pride flag burning cases involved the man named Adolfo Martinez, who stole a pride flag from a church, and then burned it outside a strip club.

Starting point is 00:22:09 Before burning the flag, Martinez was making threats toward people at the club, then left the club, went to the church, stole the flag, returned with the flag, and burned it in the street. He also threatened to burn down the bar. He then told the media that it was an honor to burn the flag and that he did it because he opposed. homosexuality. He got 15 years in prison. Now, imagine if someone went to a veterans bar, said he hated the military, came back with a stolen American flag, burned it in the parking lot, and said he'd burn down the bar too while calling veterans slurs. Suffice it to say the simple act of burning the flag would not get him arrested and jailed. We don't need an executive order that

Starting point is 00:22:44 blurs the lines of free speech to prosecute this act. It's already criminal. In that sense, this order is probably a nothing burger, albeit a provocative one. Given most Americans' pride in our flag and their attachment to it, this order is going to be popular. Trump, smartly, has once again put a lot of Democrats and liberals on the losing side of an issue. But that's all the more reason to state carefully what kinds of questions are really at stake here. This isn't about protecting some quote-unquote communist filts so they can light up the flag to whip up a frenzy in the streets. It's about maintaining a bright red line between how I'm allowed to express my thoughts and the government's authority to restrict my liberty. Remember, the

Starting point is 00:23:24 majoritarian instinct to squash the kinds of political expression you don't like will always come back around, especially when you attempt to codify it into law. We'll be right back after this quick break. All right, that is it for my take, which brings us to your question's answer. This one's from David and Cranston, Rhode Island. David said, when Isaac says capitalism is flawed, is he comparing it to an as-yet unknown perfect alternative, or does he have specific flaws he could correct under another economic approach?

Starting point is 00:24:06 He does say capitalism is generally superior, so I'm not sure whether the flawed comment has any real meaning in this context. So, first of all, great question. I appreciate it. Capitalism can be the best economic system humans have developed so far and still be and perfect, which is really my only main point. I can appreciate the fundamental and powerful benefits of being free to choose what you buy, owning the fruits of your labor and having a market system set fair prices, and still say that this system has flaws. When I mention capitalism's

Starting point is 00:24:37 flaws, the biggest flaw I can think of is how it drives wealth inequality. Capitalism makes increasing your wealth progressively easier, with the more money you have, which drives inequality. When you pay your bills on time, your credit score goes up, then you get more favorable. below terms. When you make money from investments, you can diversify your portfolio more than you have an easier time generating returns. When you succeed in a venture, you can get a controlling share of a company, which allows you to earn income passively. And if you can get paid in shares, you can get a tax benefit. On a personal note, I kind of experienced this firsthand. I went from living on $38,000 a year in a five-bedroom apartment in New York to running a successful media

Starting point is 00:25:15 business in seven or eight years. And I experienced firsthand how the more money I had, the easier it was to make more money. To me, this captures both the incredible opportunity capitalism provides and the cyclical way it can keep some people poor while other people get richer and richer. Capitalism has provided a pathway to bring millions of people out of poverty and continues to create prosperity, which is why I think it's the best system we have.

Starting point is 00:25:40 But it also creates enormous wealth inequality. I don't have a better idea, and I'd choose capitalism over any other system in a heartbeat, but I'm just not blind to its flaws. All right, that is it for your questions answered. I'm going to send it back to John for the rest of the pod, and I'll see you guys tomorrow. Have a good one.

Starting point is 00:25:57 Peace. Thanks, Isaac. Here's your under-the-radar story for today, folks. On Tuesday, OpenAI, the company behind ChatGBT, GBT, shared that it is making changes to its artificial intelligence products to better recognize and respond to signs of mental and emotional distress in users. The announcement follows reports. on people turning to chat GPT in the midst of mental health crises,

Starting point is 00:26:24 expressing feelings and ideas that the chat bot may not recognize or respond to appropriately. In a blog post about the updates, OpenAI said that it is enhancing the suggestions chat GPT provides to users over the course of extended interactions while working toward additional features such as simplified access to emergency services and connections to trusted contacts. The Wall Street Journal has this story and there's a link in today's episode description. All right, next up is our numbers section. 48 U.S. states had laws prohibiting various forms of flag desecration in 1989.

Starting point is 00:27:03 Gregory Lee Johnson was fined $2,000 for burning an American flag at the Republican National Convention in Dallas in 1984. He was also sentenced to one year in jail. In a 1990 Gallup poll, 69% of Americans supported a constitutional American. to allow laws making the burning of the American flag illegal, while 27% opposed such an amendment. In a 2006-Gallop poll, 56% of Americans supported a constitutional amendment to allow laws making the burning of the American flag illegal, while 41% opposed such an amendment. In a 2020-UGO poll, 34% of U.S. adults said it should be legal to desecrate the American flag in a protest demonstration, while 49% said it should be illegal.

Starting point is 00:27:50 And in a 2024 CBS News UGov poll, 34% of U.S. adults said it should be legal to desecrate the American flag in a protest demonstration, while 66% said it should be illegal. And last but not least, our Have a Nice Day Story. 16-year-old Sam Hines played first base for the South Side Strikes in Grand Rapids, Michigan this summer. That Sam can continue his family's baseball tradition

Starting point is 00:28:17 is thanks in no small part to the medical team at Helen DeVos Children's Hospital. When Sam was eight years old, he underwent a surgical transplant to replace his failing kidneys. And since he is a left-handed batter, his family made an unusual request to place the new kidney on his right side. They said that's never been a request before, said Sam's mom, Alicia. They were happy to do it. They were happy to make it happen.

Starting point is 00:28:41 ABC 13 has this story, and there's a link in today's episode description. All right, everybody, that is it for today's episode. As always, if you'd like to support our work, please go to reetangle.com, where you can sign up for a newsletter membership, podcast membership, or a bundled membership that gets you a discount on both. As Isaac mentioned at the top, we released a new YouTube video today, a conversation between representatives Jake Ockinclos and Representative Dusty Johnson, the Republican from South Dakota,

Starting point is 00:29:08 one of the most influential conservatives in the house. That video is now up on our YouTube channel, so if you get a chance, go check it out. And don't forget to subscribe to the channel and like the video. All those things help us with the algorithm and help us to get more seen by new viewers on YouTube. Isaac Ari and Camille will be here tomorrow with the suspension of the rules podcast. We are off this Monday for Labor Day. I hope all you all get to enjoy a lovely three-day weekend with friends, family, whoever you want to celebrate it with, wishing you nothing but good times,

Starting point is 00:29:35 no matter how you choose to celebrate. I'll be back in your ears next Tuesday. For Isaac and the rest of the crew, this is John Law signing off. Have an absolutely fantastic weekend, y'all. Peace. Our executive editor and founder is me, Isaac Saul, and our executive producer is John Wohl. Today's episode was edited and engineered by Dewey Thomas.

Starting point is 00:29:58 Our editorial staff is led by managing editor Ari Weitzman with senior editor Will Kayback and associate editors Hunter Asperson, Audrey Moorhead, Bailey Saul, Lindsay Canuth, and Kendall White. Music for the podcast was produced by Diet 75. To learn more about Tangle and to sign up for a membership, please visit our website at reetangle.com. I'm sorry.

Tangle - Should flag burning be illegal?

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