New "Prosecuting Burning of the American Flag" EO Would Violate First Amendment | Hacker News Reader

New "Prosecuting Burning of the American Flag" EO Would Violate First Amendment

reason.com

30 pointspcaharrier35 comments

I'm sure I remember reading last time this discussion came up that burning the flag is the only government approved way of disposing of a damaged US flag.

Disclaimer: I'm from the UK, not USA, so I could well be wrong.

EDIT: this article, which describes ceremonial flag burning ceremonies performed by veterans [1] contains a link to the flag code [2] of which section 8(k) states: The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

[1] https://www.defense.gov/News/Feature-Stories/story/article/2...

[2] https://www.govinfo.gov/content/pkg/USCODE-2011-title4/html/...

pointing this out as some kind of gotcha entirely misses the point

It wasn't intended as "some kind of gotcha", it's an observation that the order trying to make burning the flag illegal is in direct contradiction with the government's own recommendation on the preferred method to dispose of a flag. Presumably the outcome is that one or the other will need to change.

the actual body of the order refers to acts of "desecration" without specifying their exact nature, so no, there isn't even that level of conflict

Burning a flag for disposal rather than desecration does not violate the order.

  ...it covers desecration that violates "applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment."

I think that this order is not content neutral, and should be considered dead on arrival. But it isn't a general order against any US flag burning.

>Finally, the Order contemplates deporting and otherwise denying immigration benefits to aliens who desecrate the flag, "under circumstances that permit the exercise of such remedies pursuant to Federal law." Whether deportation of aliens based on their speech is constitutional is unsettled.

I wouldn't be the first person to note that this executive orders seems like it's a distraction tactic for something else, but this part makes me wonder if the distraction tactic is right there on the face of the thing. Perhaps there's an attempt here to give the administration another "tool in the box" for stepping up immigration enforcement actions.

> Whether deportation of aliens based on their speech is constitutional is unsettled.

Is it? That would suprise me. The First Amendment does not mention citizenship:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If free speech of aliens were not protected, neither would their practice of religion. "Americans can be Catholics, but we won't let any non-American Catholics in. We have enough of them."

> Is it?

Yes: https://reason.com/volokh/2025/02/03/may-aliens-be-deported-...

He's talking about the current state of the law on that point (i.e., deportation specifically).

I'm in good company in making this observation, it seems: https://reason.com/volokh/2025/08/26/trumps-flag-burning-exe.... "The executive order does not create any new bases for deporting a foreign national, but the order does potentially move flag burners to the front of the line in deportation cases."

I’m interested in better understanding why some actions constitute speech, but other actions don’t. Setting aside the politics of the moment, Reading the text of the amendment, it seems like a real stretch to go from the text to “burning a flag is infringement of first amendment, but libel can be prosecuted without infringing.

From the article, here is the justification: >> [anti flag burning policy] is a content-based, indeed viewpoint-based, enforcement policy.

It’s possible to commit crimes or civil infractions (fraud, for example) through speech without the speech itself being the criminal act.

In the case of flag burning, unless the context is a general ban on burning anything, the content of the speech is what’s being banned, and that content is itself not criminal in any other way.

It's a distraction to drown out Trump's involvement in the Epstein human trafficking investigation.

The Epstein thing is the true bait, which I feel Americans are swallowing hook line and sinker.

The real meat of the issue is nationalization of companies, militarization and trying to take over the Federal Reserve.

Honestly, every president of the US has semi-directly killed thousands of people. I feel that whatever exposure he had to Epstein's island pales in comparison to, you know, operating the military industrial complex.

Many people are also surprised that politicians lie and that the ultra rich do abhorrent stuff above the law. Seems like a new trend /s

No no no, the real issue is getting everybody to disagree about what the realest issue is.

It's like picking a bestest friend :) maybe he figuratively has many "best friends"? Saying this as a moderate conservative before I get called a liberal

Not to be too blunt, but the difference between the two seems obvious (of course that doesn't mean you have to agree with the law's treatment of that difference): Libel has the potential (and I think, by definition, the intent) to have concrete harmful consequences, while US-flag-burning is purely expressive - the harm is only emotional (if we assume the burning is done safely, since that's irrelevant to the topic).

Maybe you could argue that it "encourages" further action and should be covered under something similar to hate speech laws, but it doesn't seem specific/actionable enough to make sense - and anyway, that's tangential to the question of the difference between libel and US-flag-burning.

Most US states don't have criminal defamation laws ("...more than a dozen states still maintain criminal libel laws"[1]). They're infrequently used, except[0,1] an abusive tactic by police; most experts seem to think they're unconstitutional, but they haven't (yet) been invalidated on First Amendment grounds.

[0] https://www.aclu.org/press-releases/u-s-supreme-court-declin... ("U.S. Supreme Court Declines to Hear First Amendment Challenge to Criminal Defamation Law" (2023))

[1] https://www.thefire.org/cases/frese-v-formella ("Frese v. Formella")

> "Throwing someone in jail for badmouthing a public official is profoundly undemocratic and un-American."

> "But that didn’t stop police from arresting Robert Frese after he insulted them on Facebook. According to the Exeter Police Department in New Hampshire, Frese violated the state’s criminal libel law when he referred to an officer as a “coward” who was “covering up for a dirty cop.” New Hampshire’s law makes it a misdemeanor to say or write anything that you know is false that will expose someone to “public hatred, contempt or ridicule”..."

Speech implies intended communication of a message.

Burning the flag in a box of discarded junk from Grandma's house is intentional, but without message. I could conceive of that being made illegal... but so incredibly rare as to be pointless.

Burning the flag as part of the solemn, prescribed way to burn a flag has intent and message, and is speech. So is burning the flag to protest the US involvement in whatever atrocity the government is currently involved in.

Honestly, just let him go nuts with Executive Orders. Legislatively, they are the Fisher Price steering wheel controls of government - they don't change the law in any way.

He feels like he's doing something, his base is satiated with the conflict and hurtful intent, and they can just as easily be rolled back in 3 years.

As long as he's not focused on passing actual laws (like the BBB), this is the best possible outcome of this administration. It's a bunch of performative bullshit that doesn't actually change anything.

You assume the next administration will be any different than the Russian administrations have been after each election.

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