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Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


We'll agree to disagree. Johnson was the only example he talked about--in speeches, in his book with Garner, etc. In other First Amendment contexts, he never really pretended to be doing originalism.

Posted by: Howard Wasserman | Jun 3, 2020 10:59:09 PM

"Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome"

Ok, this is a cheap shot. Scalia's originalism tended towards conservatism, but it provided much more support to "liberal outcomes" in respect to the Fourth Amendment and criminal procedure than it did for "liberal outcomes" in respect to the First.

Posted by: RComing | Jun 3, 2020 10:38:23 PM

An anti-flag burning law in the US would be as bad as the one the CCP is imposing on Hong Kong.

Posted by: Douglas B. Levene | Jun 2, 2020 4:59:18 PM

"The most remarkable aspect of Justice Roberts' opinion, delivered for a unanimous Court, is that it cites no authority. None. Instead, the opinion disposes of the issue in one sentence: "We are . . . clear that the Constitution imposes no . . . restraint on government as respects purely commercial advertising." (n2) And so was born the commercial speech doctrine. Without citing any cases, without discussing the purposes or values underlying the first amendment, and without even mentioning the first amendment except in stating Chrestensen's contentions, the Court found it clear as day that commercial speech was not protected by the first amendment."
-"Who's Afraid of Commercial Speech?" [Virginia Law Review, May 1990, 76 Va. L. Rev. 627] by Ninth Circuit Judge Alex Kozinski and Stuart Banner

Posted by: Conservative Court Watchers | Jun 2, 2020 2:17:04 AM

The only one I am willing to grant is Alito, whose First Amendment jurisprudence (like Rehnquist's) was often driven by whether he liked the speech. But the fact that he cited Johnson in his Tam opinion moved me from that. Thomas has never gone full "speech is speech" and his support for commercial speech suggests his less-than-pure-originalist take on the First Amendment. And Gorsuch, like Scalia, would like the cover of an ideological outlier.

Posted by: Howard Wasserman | Jun 1, 2020 5:20:36 PM

Very few politicians, I suspect, have the faintest idea whether this Court would be open to overruling Texas v. Johnson, or what this Court thinks about speech outside the realm of campaign finance. I would bet you that, outside of the less cynical and more sophisticated members of the Senate and House's Judiciary Committees, and some other well-trained lawyers outside those committees, a great many politicians would think that, because this Court is more "conservative" than the Court of thirty years ago, it might well view flag-burning laws differently. And I will say that, though it's impossible to fathom a majority to overrule Texas v. Johnson, I think that Thomas would be quite receptive to overruling it on originalist grounds (only literal speech is speech, something to that effect), Gorsuch at least open to the idea on the same grounds, and Alito also open on somewhat different grounds (see his often solo dissents in just about every First Amendment case over the last decade). I don't think Kavanaugh would have any interest at all, but if someone disagreed I wouldn't think they were crazy. So in short, I don't think Trump displays an unusual degree of ignorance of the Court for a politician here, and I actually think he's only misreading what's possible by one or two votes, which is the kind of error professionals make all the time.

Posted by: Asher | Jun 1, 2020 5:10:41 PM

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