| In 1989 and 1990, in Texas v. Johnson and U.S. v. Eichman, respectively, the U.S. Supreme Court struck down, as violative of the First Amendment, stand-alone laws from Texas and Congress that made it a crime to desecrate the U.S. flag. As with many culture-war legal precedents that had seemed well-settled, President Donald Trump has stirred the pot; last week he issued an executive order entitled “Prosecuting Burning of the American Flag,” which directs the U.S. Department of Justice to: | prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.
| | The Executive Order goes on, in a similar (and perhaps repetitive) vein to direct the Attorney General to “vigorously prosecute . . . [t]o the maximum extent permitted by the Constitution . . . those who violate our laws in ways that involve desecrating the American Flag. . . .” | | Many commentators and analysts have construed the Executive Order’s language excerpted above as not raising any constitutional conflicts since the admonitions to the DOJ are limited by the “to the fullest extent possible” and “to the maximum extent permitted by the Constitution” language, words seemingly chosen to respect, and steer clear of violating, Johnson and Eichman. That is, many folks seem to believe that if flag desecration is punished not because it constitutes a violation of law across the board and in and of itself, but because in a particular situation it constitutes a violation of another “content-neutral law” and “caus[es] harm unrelated to expression,” then all First Amendment problems disappear. For example, if someone burns a flag to intentionally and imminently incite lawless behavior by others, then the fact that flag burning per se can’t be punished confers no immunity on the defendant from being punished under the more generic and content-neutral crime of incitement, even though the incitement happens to take the form of flag destruction. | | But as our friend and colleague Mike Dorf explained on his blog, things are not so simple, because Johnson and Eichman aren’t the only relevant First Amendment precedents that must be weighed. In particular, Mike highlights the importance of R.A.V. v. City of St. Paul, where in 1992 the Court struck down an ordinance that, as interpreted by the Minnesota courts, made it criminal to engage in “fighting words” that cause resentment on the basis of race, religion or gender. According to the Supreme Court majority, even though fighting words, like incitement or a true threat, are a form of expression that falls outside of First Amendment protection, if government punishes a subset of fighting words based on the subject-matter or viewpoint of the obnoxious words, such discrimination runs afoul of the First Amendment’s neutrality requirements. So, for instance, if fighting words or incitement that demean or denigrate Democrats are made criminal by a statute, but fighting words or incitement that demean and denigrate Republicans are by the statute’s terms not criminalized, then the fact that fighting words are unprotected by the First Amendment generally does not save the statute. | | As Mike points out, this “logic applies to flag burning [that amounts to] fighting words or incitement.” Thus, if the federal government were in the text of a statute to single out and punish only those instances of incitement or fighting words that take the form of flag desecration (leaving other instances of incitement or fighting words lawful), R.A.V.’s concerns about impermissible censorship would be implicated. | | Although President Trump’s Executive Order doesn’t formally limit the scope of, say, federal incitement statutes to incitement that takes the form of flag burning, we think that “prioritizing” for prosecution incitement that consists of flag burning does implicate concerns over whether the government is (permissibly) going after people because of the detrimental effects of incitement more generally, or (impermissibly) because of the government’s aversion to the message of flag burning — a message the Executive Orders characterizes as the “clearest possible expression of opposition” to our government. Mike does not discuss this point, but we think (and he might agree) that there is no qualitative constitutional difference between defining the statutory contours of what is criminal, on the one hand, and identifying categories of activity that are “prioritized” for punishment under a more generally crafted statute, on the other. | | But as sophisticated as Mike’s analysis is (and we had much the same reaction that Mike did when we first read the Executive Order), we think the doctrinal analysis is complicated by additional Supreme Court cases. That is, while Mike is certainly right that Johnson and Eichman aren’t the only cases to consider, we think that even Johnson, Eichman and R.A.V. aren’t the only cases to consider. | | In particular, we think that in assessing the Executive Order, cases in which the Court has upheld so-called “hate crime” laws (and related statutes) must also be taken into account. In Wisconsin v. Mitchell, for example, the Court upheld a Wisconsin law that increased punishment for individuals who committed crimes in which they singled out their victims on the basis of race. In rejecting the argument that such an enhancement effectively punishes criminals for disfavored, racist views in violation of R.A.V., the Court said the following: | [W]hereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ”speech” or “messages”) the statute in this case is aimed at conduct unprotected by the First Amendment. Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. . . . The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.
| | We think there is considerably more tension between R.A.V. (which was 5-4) and Mitchell (which was unanimous a year later) than the Court’s opinion in Mitchell suggests. First, to characterize the R.A.V. statute as focused on expression rather than conduct is to ignore the fact that “fighting words,” while expressive, fall outside the scope of expression protected under the First Amendment. Imagine, for example, that a state criminalizes battery (undeniably conduct rather than speech) against Republicans but not against Democrats. The fact that assault is “conduct unprotected by the First Amendment” does not mean that the statute is immune from censorship concerns. More generally, while the speech/conduct distinction is something the Court does sometimes use in First Amendment jurisprudence, it is less helpful than meets the eye. Flag burning itself is easily characterized as conduct, but the laws in Johnson and Eichman banning flag burning clearly implicate the First Amendment because the government was singling out certain conduct because of the conduct’s message. So what matters is not so much whether an individual’s actions look more like conduct than speech (consider sign language); what matters most is whether the government doing the regulating seems to be motivated by the individual’s viewpoints or messages. | | Second, Mitchell’s reliance on the government’s claim that race-based victim selection inflicts “greater individual and societal harm” and is “more likely to provoke retaliatory crimes . . . and incite community unrest” than other crimes is a treacherous basis on which to uphold the Wisconsin statute; flag-burning, after all, might generate dangerous “secondary effects” such as community retaliation (the Executive Order plausibly calls flag destruction “uniquely provocative” among all the kinds of potentially inciteful conduct), but the Court rejected government’s power to ban it in Johnson and Eichman. So too racialized fighting words might be particularly likely to prompt civil unrest, and yet in R.A.V. the Court said that “secondary effects” that arise from the reaction of third parties to the criminal’s messages are not cognizable bases for government to act under the First Amendment. | | Nor can Mitchell be easily explained on the seemingly narrow ground that victim selection is a distinct category of criminal intent that falls outside First Amendment concern. Laws that specially punish terrorism seem focused not just on who the victims are, but also (if not moreso) on the political motivation of the terrorist. Punishing terrorist acts more severely than otherwise identical conduct that (unlike terrorism) is not intended to intimidate in order to accomplish political aims would also seem to raise the question whether government is trying to punish and deter the political mindset of the terrorists and not just trying to address the real-world effects of their harmful behavior. Any yet we take for granted that special punishment of terrorist acts is permissible even though why such laws are allowed isn’t quite clear; the Court in Holder v. Humanitarian Law Project upheld against First Amendment challenge a law that prohibited the provision of material support to foreign terrorist organizations, but in so doing it relied on foreign-affairs factors that do not necessarily apply in the domestic context. | | Likewise, we take for granted that workplace discrimination on the basis of race or sex, while perhaps politically motivated (for example, a perpetrator might well be inspired by the belief that racial minorities or women do not belong in certain workplaces), can be prohibited under Title VII and similar statutes. In Mitchell, addressing the defendant’s argument that the penalty enhancement impermissibly punished his motive, the Court simply wrote: “But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld [before R.A.V., we would add] against constitutional challenge.” Exactly what that “same role” can permissibly be is anyone’s guess. | | We are not at all intimating that R.A.V.’s core teachings are wrong — we think the case is right (even though it was closely divided) and that Mike Dorf is thus correct about President Trump’s Executive Order; certainly the fact that government is regulating behavior or expression that generally falls outside the First Amendment cannot mean that censorship is never afoot (think about a law that specially punishes threats that invoke Marxist ideology or threats that target Republicans). But it also seems clear that the Court has not provided good, easy answers for why many criminal laws that appear to punish more harshly certain kinds of criminal conduct animated by certain political motivations do not also implicate First Amendment skepticism. We don’t take the position that no convincing answers to these questions could ever be fashioned. For example, perhaps there ought to be a line drawn here between laws that regulate proscribable activities (even expressive activities) on a content basis vs. laws that do so on a viewpoint basis. Under this approach, a law banning incitement concerning immigration policy might be permissible (since it would ban incitement targeted at people who both support and oppose current immigration policies), but a law banning threats against Democrats only would violate the Constitution because it singles out one political party’s viewpoint. More generally, we think the Court has been overly reflexive in lumping together doctrinal treatment of content- and viewpoint-based laws in a variety of settings. Coming back to the flag-burning Executive Order itself, even if a careful distinction between content and viewpoint were employed, singling out flag desecration would remain problematic because flag destruction reflects a particular (albeit somewhat capacious) viewpoint that is undeniably critical of government policy and the status quo. In any event, we do not seek in this column to present and defend the best answers to these and related doctrinal puzzles. Instead our point is that the Court has not done much to provide analytic clarity and consistency in this realm. And that kind of doctrinal inadequacy in such a complicated constitutional arena as this is never comforting. |
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