From Chief Judge James Boasberg's decision Tuesday in U.S. v. Carey (D.D.C.):
You cannot falsely shout fire in a crowded theater. What about lighting a fire in a crowded park? After President Donald Trump issued an executive order directing the Department of Justice to prosecute anyone who engages in the protected speech of burning the American flag, Defendant Jan Carey marched to Lafayette Park and burned a flag in protest.
He stands charged with violating park regulations that prohibit setting a fire outside a designated area or receptacle and lighting a fire that damages property or threatens public safety…. The Court holds that the regulations do indeed apply to Carey's flag burning, but it finds that he is entitled to proceed with a further inquiry into whether he is being prosecuted to punish him for his allegedly illegal actions or for his constitutionally protected speech….
The First Amendment protects burning the American flag. Texas v. Johnson (1989). Yet last August, President Trump issued an executive order decrying flag burning and announcing, "My Administration will … prosecute those who … otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority." The order noted that flag burning might violate several "content-neutral laws" that fight "harm unrelated to expression, … such as open burning restrictions … or destruction of property laws."
Outraged, Carey grabbed an American flag and headed to Lafayette Park, which sits right across from the White House. He laid the flag down on a brick path and, clutching a lighter in one hand and a megaphone in the other, declared that he had served in the Army for twenty years and "fought for every single one of your rights to express yourself …. There's a First Amendment right to burn the American flag. The [President] signed an executive order today saying that it was illegal to burn the American flag." Gesturing at the White House, Carey announced, "I'm burning this flag as a protest to that illegal fascist President that sits in that house." He then bent down and lit the flag on fire. Officers on the scene eventually extinguished the burning flag, leaving its charred remains and some scorched bricks underneath….
