STEVE INSKEEP, HOST:
This next story, like so many involving President Trump, is a rerun from the 1980s. The president developed many of his views in the 1980s, when he was a real estate developer in New York. His trade policy, much of his rhetoric, is familiar to people who were around in the '80s. And that is true of the president's call to punish people who burn the American flag, a matter that the Supreme Court ruled on in the '80s.
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PRESIDENT DONALD TRUMP: 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 5-to-4 decision - they called it freedom of speech.
INSKEEP: As they did. Let's bring in the president of the National Constitution Center, Jeffrey Rosen. Good morning.
JEFFREY ROSEN: Good morning.
INSKEEP: Do you recall that ruling by the Supreme Court in 1989?
ROSEN: I recall it very well. I was in law school. And in fact, I wrote my law school note about that ruling, so I thought about nothing more than that ruling in 1989.
INSKEEP: Did you argue that the 5-to-4 ruling was appropriate?
ROSEN: I sure did. And I was especially moved by the fact that Justice Antonin Scalia agreed. He had a great line a few years later. He said, if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But then he added, I'm not a king.
INSKEEP: (Laughter).
ROSEN: And that inspiring statement by the conservative Justice Antonin Scalia convinced me and the Supreme Court, and lots of other people, that it's the pillar of our constitutional tradition that you can't punish expressive conduct merely because it's offensive.
INSKEEP: Now, I'm just remembering - this was a ruling about a law that banned flag burning, right?
ROSEN: Exactly. It started off with a Texas law that banned flag burning. A guy called Gregory Johnson was prosecuted. And the Supreme Court struck that down in 1989, but Congress wasn't willing to rest. So it passes a law the next year banning flag desecration at the federal level, and the Supreme Court strikes that down again in 1990. Both of those decisions were 5 to 4. There were dissents, including by Chief Justice Rehnquist. But most people think that this Roberts court would affirm the protections for flag burning. Even Justice Alito has cited the decision sympathetically, although Justice Thomas has questioned it.
And that's why, for all those reasons, it's one of those laws that everyone expects to stay. And the president's executive order doesn't squarely challenge it. It basically says that if you burn the flag in a way that otherwise violates the law, such as possibly inciting imminent violence, then you can be prosecuted. But the Supreme Court said that flag burning by itself doesn't threaten imminent violence. So essentially, it's possible that he's inviting a challenge to Texas v. Johnson. He does suggest that - nonwithstanding the Supreme Court's rulings on First Amendment protections, the executive order says it's appropriate to pursue litigation to clarify the scope of the First Amendment exceptions to this...
INSKEEP: Oh.
ROSEN: ...Area. Some - that might be an exception to...
INSKEEP: OK.
ROSEN: ...Revisit the case.
INSKEEP: So working around the edges, this reminds me of some other executive orders that tell agencies to do illegal things to the maximum extent permissible by law. In other words, it's not really an order about anything. In a couple of seconds, does this feel like a distraction from other matters, then?
ROSEN: Well, I think it does. It's symbolic, but it's not likely to have practical effect unless you burn the flag and try to incite violence at the same time, which is not likely to happen.
INSKEEP: OK. Jeffrey Rosen is president of the National Constitution Center - also, by the way, author of an upcoming book, "The Pursuit of Liberty: How Hamilton Vs. Jefferson Ignited The Lasting Battle Over Power In America." Thanks so much, Jeffrey.
ROSEN: Thank you.
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