President signs executive order against flag burning; the Supreme Court has ruled twice that flag burning is protected speech.

OK pay attention. I went to school in New Jersey. We had Mrs. Sullivan for civics. Mrs. Sullivan covered the Bill of Rights in eighth grade. She covered it again in tenth grade because it was important. The First Amendment, Mrs. Sullivan said, is the first Amendment for a reason. Speech is protected. Even speech you don’t like. Even speech you really don’t like. Even speech that involves a flag and a match.

The Supreme Court of the United States has ruled, twice, on this exact point. Texas v. Johnson, 1989. United States v. Eichman, 1990. Both cases said the federal government cannot prosecute somebody for burning the American flag because burning the American flag is protected expression. Five to four. William Brennan wrote the first one. Antonin Scalia, Antonin Scalia, the Republican icon, voted with the majority. Antonin Scalia. The man who wrote Heller. He said yes, you can burn the flag, that is what the Constitution covers.

That was thirty-six years ago. The law has not changed. The Court has not revisited it. The doctrine is settled. Settled. In court terms, that is granite.

On Thursday, the President signed an executive order directing the Justice Department to prosecute flag burning. Prosecute it. The very thing the Supreme Court said you cannot do. The order is being announced in front of an actual flag, on television, with a Sharpie.

Buddy. Either the lawyers in the room knew this would lose in court and let it get signed anyway, or they did not know, in which case who is in the room writing executive orders. There is no third explanation.

I have been to enough bar exam cram sessions to know that the first thing you teach a 1L is do not write a statute that violates a settled Supreme Court precedent. It is literally the first thing. It is on page one. The book is large.

The order will be enjoined. The order will be lifted. The order will join the small museum of executive orders signed for theater that never produced a single legal effect. We have built a museum. Mrs. Sullivan would be tired.

I’m arguing with the television. The television is reading the case law back at me.