In 1989, Justice Antonin Scalia cast the deciding vote to overturn the conviction of Gregory Lee Johnson, who was arrested and found guilty of violating a Texas statute after he burned the American flag outside the Republican National Convention.
The author of the 5-4 opinion was Justice William Brennan, the leading liberal and advocate for the “living Constitution” on the Supreme Court.
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The president’s executive order is not only much needed and long overdue, but is also very likely to be upheld by the Supreme Court when the inevitable challenges arise.
But the opinion by Brennan, which Scalia joined, is not as absolute as it has subsequently been portrayed.
The historical context
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It also held that the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Only laws directed at restricting the communicative nature of expressive conduct implicate the First Amendment, and even then they can be upheld for a valid governmental interest.
* Original Article:
https://www.theblaze.com/columns/opinion/yes-trumps-flag-burning-executive-order-is-constitutional