Trump brags flag burning ban 'took the freedom of speech away’

WASHINGTON (CN) — President Donald Trump said his administration “took the freedom of speech away” during a White House event Wednesday where he berated left-wing extremists for burning American flags.

Trump’s comments referred to an executive order calling for the prosecution of people who burn the flag — a form of protest protected by nearly four decades of Supreme Court precedent.

“That’s been through the courts, and the court said, ‘you have freedom of speech,’ but what has happened is, when they burn a flag, it agitates and irritates crowds,” Trump continued.

First Amendment advocates said that the government can’t prosecute protected expressive activity even if it is provocative. Bob Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression or FIRE, said that Trump doesn’t have the power to revise the First Amendment.

“President Trump may believe he has the power ‘to take away the freedom of speech,’ but he doesn’t,” Corn-Revere said. “ The Supreme Court settled this question almost four decades ago — the First Amendment protects burning a flag as a form of symbolic protest, even if crowds who witness it get ‘agitated.’ No executive order can change that.”

The Supreme Court recognized flag burning as protected First Amendment activity in Texas v. Johnson in 1989. Congress tried to counter the justices ruling with the 1989 Flag Protection Act, but the Supreme Court struck down the law as unconstitutional.

In an Aug. 25 executive order, the White House said Johnson didn’t address flag burning that “is likely to incite imminent lawless action or that is an action amounting to ‘fighting words.’”

“When you burn an American flag, you incite tremendous violence,” Trump said Wednesday.

In response to questions about Trump’s remarks, the White House said the president would implement commonsense policies to prevent violence.

“President Trump will not allow the American flag — a special symbol of our country’s greatness — to be used as a tool to incite violence and riots that jeopardize the safety of everyday Americans,” Abigail Jackson, a White House spokeswoman, said. “President Trump will always protect the First Amendment, while simultaneously implementing commonsense, tough-on-crime policies to prevent violence and chaos.”

Trump’s remarks came after conservative influencer Nick Sortor was arrested during a demonstration outside of an immigration detention facility in Portland, Oregon, which Trump claimed was “war ravaged." The president said Sortor was assaulted by a flag-burning mob during a roundtable about antifa — a political movement opposed to fascism and far-right ideologies.

“I don’t know what could be worse than Portland,” Trump said. “You don’t even have stores anymore. They don’t even put glass up. They put plywood on their windows.”

In a Sept. 22 executive order, Trump claimed to designate antifa as a domestic “terrorist organization.” The executive lacks any federal legal provision to designate domestic terror groups, and the fact antifa is an ideology and not a defined group makes it unclear as to how the order would be enforced.

Patrick Eddington, a senior fellow in homeland security and civil liberties at the Cato Institute, said that any legal and factual problems with the executive order might not be enough to stop Trump from carrying out his stated goals.

“What matters is that the administration asserts the authority to do this, and it has thousands of armed and armored federal law enforcement agents ready and able to carry out Trump’s orders — just as ICE and other federal agents (including mobilized National Guard troops) have been carrying out ‘immigration enforcement’ operations of dubious or no legality for months,” Eddington wrote after the order was issued.

The Cato Institute uncovered previous FBI investigations targeting antifa through Freedom of Information Act requests. Eddington said that the FBI worked with Oregon State Police in 2018 to target Rose City Antifa, and the Secret Service investigated the antifa movement nationwide during the Biden administration.

On Wednesday, Trump suggested that the administration was conducting investigations on individuals who support the movement.

“We’re deploying the full might of the federal law enforcement to crack down on antifa and other domestic terrorist organizations, led by Stephen Miller,” Trump said. Miller is the White House deputy chief of staff.

Homeland Security Secretary Kristi Noem claimed the federal government had arrested dozens of antifa members and individuals affiliated with them. Noem visited with Immigration and Customs Enforcement agents in Portland, Oregon, on Tuesday and claimed the city was trying to cover up terrorism.

Noem thanked Attorney General Pam Bondi for prosecuting these individuals and “making sure they never see the light of day again.”

U.S. District Judge Karin Immergut, a Donald Trump appointee, said the president’s perception of the city was not reality and blocked the administration from deploying the Oregon National Guard. Immergut issued a subsequent order squashing Trump’s attempt to send troops from California and Texas instead.

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