This American scored a First Amendment victory — and fears it's now in danger

01 September

U.S. President Donald Trump reacts during a cabinet meeting at the White House in Washington, D.C., U.S., August 26, 2025. REUTERS/Jonathan Ernst

In late August, President Donald Trump issued an executive order that, according to legal scholars, is blatantly at odds with a landmark 1989 ruling by the U.S. Supreme Court. Trump declared that burning the U.S. flag is illegal and punishable by one year of incarceration.

"If you burn a flag," Trump said during a White House Oval Office announcement, "you get one year in jail. No early exits. No nothing."

But back in 1989, the High Court ruled, 5-4 in Texas v. Johnson, that burning the U.S. flag is constitutionally protected speech under the First Amendment. And most of the five justices in the majority were Republicans, including Harry Blackmun (a Richard Nixon appointee) and Ronald Reagan appointees Anthony Kennedy and Antonin Scalia.

The fact that Kennedy was part of the majority wasn't especially surprising, as he had strong libertarian leanings. Scalia, however, was known for being much more of a social conservative, yet saw flag burning as constitutionally protected speech despite his disdain for "scruffy, bearded, sandal-wearing idiots who burn the flag."

The Johnson in Texas v. Johnson was Gregory Johnson, who is now 68 and, according to The New York Times' Adam Liptak, fears that the 1989 ruling is now in danger.

Johnson is a longtime member of the Revolutionary Communist Party (RCP), a far-left group with Stalinist and Maoist leanings. And he burned the flag during the 1984 Republican National Convention in Dallas to voice his disagreement with then-President Ronald Reagan's policies. But when the Texas v. Johnson ruling was handed down 36 years ago, legal scholars commented on the fact that shockingly, the arch-conservative Scalia and an RCP member found some rare common ground.

Johnson told the Times, "Do you want to live in a country that's based on coerced, forced, compulsory patriotism?"

Liptak, in an article published by the Times on Labor Day 2025, notes that Kennedy "said his vote was a painful but necessary one" and wrote that Johnson "did not even possess the ability to comprehend how repellent his statements must be to the Republic itself."

To many legal and constitutional scholars — from right-wing libertarians to liberals and progressives — the fact that both Scalia and Kennedy were openly disdainful of Johnson's communist views yet upheld his First Amendment rights was a massive victory for the Constitution. Scalia and Kennedy, according to historians, essentially said that while they found Johnson's views repugnant, they would defend his right to express them.

Johnson believes that politically, the U.S. is facing a major crisis during Trump's second presidency.

Johnson told the Times, "What were dealing with is fascism. It's not a curse word. There’s real content to it, and I wish more people would debate and struggle over that."

Read Adam Liptak's full New York Times article at this link (subscription required).

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