Free speech is an absolute right, and it cannot be subdivided. If you allow a group to ban the KKK's free speech, there will be another group that will ban your free speech.

For someone who grew up in banana republics, I truly value the First Amendment.

Unfortunately, I have no idea about the specific case law in the United States. But I would be surprised if some statements that one would expect from the KKK, for example, were actually still considered free speech.
We are familiar with the tolerance paradox (Karl Popper):
‘Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.’
Ideally, however, this should be ensured by the legitimate state authorities.
Incidentally, in the German language, the terms ‘authority’ and “violence” are the same word: ‘Gewalt’.
In this respect, speech you hate should not be combated with violence, but with (state) authority.

There is a line. You cant yell Fire in a Theater kind of thing. Here's some interesting examples ChatGPT gave me.

1. Incitement to Imminent Lawless Action

Case law: Brandenburg v. Ohio (1969)

This case actually involved a KKK leader who made inflammatory statements. The Supreme Court ruled that speech advocating violence or illegal acts is protected unless it is:

Directed to inciting or producing imminent lawless action, and

Likely to incite or produce such action.

Takeaway: You can say terrible things in the abstract (e.g., "The government should be overthrown"), but not things that are likely to incite a riot or violence immediately (e.g., "Let's burn down the courthouse right now!").

2. True Threats

Case law: Virginia v. Black (2003)

Threats of serious bodily harm or death made with intent to place someone in fear are not protected.

Example: Telling someone "I'm going to kill you tomorrow" in a credible way could be prosecuted as a true threat.

Context matters - the courts assess whether a reasonable person would interpret the statement as a real threat.

3. Fighting Words

Case law: Chaplinsky v. New Hampshire (1942)

These are words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

This is a narrow category - modern courts are skeptical of applying this doctrine unless the language is directly confrontational and likely to provoke a physical reaction.

4. Defamation (Libel and Slander)

False statements that damage someone's reputation can be punished.

Public figures (e.g., celebrities, politicians) must prove "actual malice" - that the speaker knew the statement was false or acted with reckless disregard for the truth (New York Times Co. v. Sullivan, 1964).

You can't lie about someone in a way that seriously harms them - at least not without potential legal consequences.

Two X posts say
First amendment freedom of speech is protected, within limits mentioned by Adam.

Flag burning is done to "retire" a flag at end of its life.
Flag burning is protected. An EO doesn’t override that.

John Adams stated, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

We have boundaries to our free speech as noted above, by Adam.  Our American culture is based on a common understanding of decency and norms.  As we allow our culture to shift by embracing moral decline or importing people who refuse to integrate into the American culture or any other means, I am concerned that we will find that our fellow Americans are willing to accept increasing limits to our freedom.  

In my opinion, the role of shame has been undervalued in society as the soft boundary that kept people on the right track.  This is why I believe that traits like humility, integrity, and grace are essential in all of us, but most especially in our leaders.  They are the ones charged with setting those boundaries.  

Sami - you hit it right on the head. Free speech cannot be subdivided. Once you start deciding which speech is allowed and which is not, you have lost the principle entirely. It always comes back around to bite you.

Lars - I had never heard of the Karl Popper paradox of tolerance before, so thanks for sharing that. It is an interesting idea, and I agree that intolerance has to be opposed. But I think, as you said, that is the role of legitimate authority, not vigilantes. It is one thing for the state to step in if violence or lawbreaking occurs. It is another for individuals to think violence is an acceptable answer to offensive words. That just makes the problem worse.

Adam - thanks for posting the case law. I know the yelling fire in a theater line is often quoted, but as I understand it, there is no actual law on the books for that anymore. The point still stands though: free speech does have limits, especially when it crosses over into direct threats, inciting immediate violence, or clear defamation. Protest against the government is protected. Credible threats against the president, or inciting a mob to burn down a courthouse right now, are not. Inciting a mob to attack the Capitol... now...

John - you are right, flag burning has been recognized by the Supreme Court as protected symbolic speech, no matter how offensive it may be. An executive order cannot override that.

Matt - I do think John Adams was right when he said the Constitution was made for a moral people. The system only works if we live by shared principles like integrity, humility, and respect. That is also why we have police and courts: to enforce the laws when people cross from speech into crime. But I still maintain it is not the role of government to silence political speech, even speech we despise. That is a slippery slope I want no part of. Funny thing about Adams using the word "religious" is that he did not mean the Constitution only works for Christians. Adams himself was a Unitarian and rejected a lot of orthodox Christian beliefs. What he meant was that the Constitution assumes a people who have a strong moral framework and self-discipline. In his day, "religious" was often shorthand for that kind of virtue, not a mandate for theocracy... just like when Einstein said "God does not play dice" he was not talking about a literal god, but using the word as shorthand for natural law.

At the end of the day, I think we all agree that there are limits and responsibilities that come with free speech. But the answer to bad speech is not vigilante violence. It is better speech, and a society strong enough to stand by the very rights that make us free.

I'm torn on this subject.  I spent 28 years (24/7) protecting the citizens of the U.S. from all enemies (foreign and domestic).  It pains me to see our flag burned in protest against the very country that gives people the "right" to do so.  I personally believe that the SCOTUS got it wrong on flag burning as free speech, but until its overturned, its "Law".  But I fear that its the "slippery slope" and wonder where it ends...burning government buildings, property, or personnel?  Better to keep "speech" as just that...words (spoken and/or printed), not actions.  BTW, this discussion reminds me of the ST:TNG episode "The Drumhead".  LLAP!

Matt our founding fathers were a group of extraordinary men way ahead of their time. We are fortunate that we still have a lot of the papers that recorded their discussions, which showed the level of intellect that those people had. But they were mortal men, with all the shortcomings of their time. They approved of things that today we find Abhorrent. That does not take away from the genius of the experiment that they have founded.

We have to take the things that they said and put them into the perspective of our time. And hence I agree with Richard's points regarding your comments.

Richard I agree with you, the answer to bad speech is grace.  

I also agree the government, whether directly or indirectly, has no business trying to police thoughts.  

I think term "religious" can be tied back into humility and grace.  I believe that many cultures and religions are fully compatible with the our shared principles of the American culture, but not all.  I think that is what John Adams was alluding to.

The boundary point from speech to crime will be littered with edge cases.  (I believe the rationale for the EO was the open burning and incitement issues.)  To Sam's point, the 1989 Texas v. Johnson ruling was 5-4, meaning it was not clear-cut for them.  It also invalidated laws in 48 states.  This is the difficult task that our leaders have been charged with.  As far as flag burning, specifically, it seems more performative than thoughtful but that's just me.

Sam - I hear you. If people are burning government buildings or property, that is a crime. If someone burns their own flag in a safe way without endangering others, that is a demonstration. If they burn my flag, that is property destruction. If they burn a flag in a wildfire area, that is arson. This is exactly why we need courts to sort out what is and is not a crime, and to weigh intent. Life is not black and white the way it is taught to us as kids. There are always shades of gray that the justice system has to consider.

Sami - yes, the Founding Fathers were extraordinary men who got a lot of things right, but they also got some things wrong. I do not want to open a whole new debate here, but take the Second Amendment as an example. I am a gun owner myself, and I believe in the right to bear arms, but the Founders could not have imagined automatic weapons. The idea of forming a militia to resist a tyrannical government was before the age of nuclear weapons and fighter jets. Times have changed. That is why the Constitution is amendable. Its strength is that it can be updated to fit the times. And honestly, ours is long overdue for some updates.

Matt - the reason I commented on the word "religious" is because people today see terms like religion or God in old documents and assume it points to Christianity or the "Christian nationalism" that's on the rise today. Nothing could be further from the truth. The Founders deliberately built a separation of church and state because they had seen in England how dangerous it is when you mix government and religion. People of any faith or of none should agree that is a wise principle. It protects everyone.

Sam Domingo - Did 27 years myself.
All - Would I allow a flag to be burned in front of me? Yes. Like it? Not at all. Taking a knee? Yes. Like it? Again, no. These high visibility actions are shocking, as they appear to attack the symbols of liberty (that give them that right) and Our Identity as a people.  These acts do get us talking. Against the action itself - loud and deafening. Why it was done - a whisper in comparison. The US has made great decisions and horrible ones. Like every other country. History is written (and skewed) by the Victors. Rewriting history by dangerous zealots. The truth we need to cling to is always in between.  
Except when it comes to tacos. They are great - always.

Adam Thanks.

ChatGPT kindly helped me get started in my attempt to compare American and German law. I think you can see the subtle cultural differences quite clearly:

In Germany, free expression is protected by Article 5 of the Basic Law (Grundgesetz), but it is not absolute. It is limited by "general laws," the protection of youth, and the right to personal honor. Courts apply a balancing test between freedom of expression and other constitutional values. Compared to the U.S., this leads to more restrictions, especially where human dignity, public peace, or personal reputation are at stake.

A few examples:
Incitement: Under German law (§111 StGB), even a general public call to commit crimes can be punishable, not only imminent incitement. Hate speech (§130 StGB, Volksverhetzung) is criminalized even without a direct and immediate threat of violence.
Threats: German law (§241 StGB) punishes threats more broadly; it is enough that the victim feels endangered, even if the threat is not objectively credible.
Insults: Unlike the narrow U.S. “fighting words” doctrine, Germany has a full criminal offense (§185 StGB) covering insults. Protecting personal honor is considered part of safeguarding human dignity.
Defamation: Germany requires truthfulness in factual claims. False statements that damage reputation can be punished even if made negligently, not just with “actual malice.”

Why this difference?
The German approach is heavily shaped by historical experience — especially the Weimar Republic’s collapse and the rise of the Nazi regime, where unchecked hate propaganda played a central role. After 1945, the framers of the Basic Law and later the Federal Constitutional Court placed human dignity (Art. 1 GG) at the very top of the constitutional order. Free speech is vital, but it is balanced against dignity, equality, and public peace.
In practice, this means Germany tolerates less extreme and harmful speech than the U.S., not because it values liberty less, but because its constitutional order prioritizes protecting democracy against its enemies (“militant democracy”) and ensuring that free speech does not become a tool for oppression.

Let's start by reading what it is that we're commenting on. I'm posting here not to defend or oppose the executive order but to inform. It was actually not easy to find the actual text. Here it is. My comments to follow.

Details

Prosecuting Burning of the American Flag Executive Order August 25, 2025

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1. Purpose.
Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation - the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

Notwithstanding the Supreme Court's rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to "fighting words" is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.

The White House

Section 2. Measures to Combat Desecration of the American Flag.
(a) The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation's criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans' civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.

(b) In cases where the Department of Justice or another executive department or agency determines that an instance of American Flag desecration may violate an applicable State or local law - such as open burning restrictions, disorderly conduct laws, or destruction of property laws - the agency shall refer the matter to the appropriate State or local authority for potential action.

(c) To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.

(d) The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law - including 8 U.S.C. 1182(a), 1424, 1427, 1451(c), and 1227(a) - whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.

The White House

Section 3. Severability.
If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

Section 4. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The costs for publication of this order shall be borne by the Department of Justice.

The White House

Signed:
DONALD J. TRUMP
THE WHITE HOUSE,
August 25, 2025.

Full disclosure. I am a supporter of our current president. I worked on his campaign and I'm happy with the progress that has been made since he took office.

The purpose section just tells the "why" of what is done. It's the emotional part. The key part that I see here is not desecration itself but rather those who incite violence while desecrating the flag. This speaks to what happened during the summer of 2020 including January 6.

Section 2 is the "what."

Section A says to the Attorney General to prosecute to the fullest extent possible with existing laws and constitutional limitations.

Section B says to find other laws such as burn rules for anything local and state regardless if the item burning is a flag or not. That is a loophole that can be used for enforcement.

Section C says work to create laws involving flag desecration.

Section D prohibits foreign nationals from desecrating our flag.

Section D I believe will be the only one that stands up to litigation.

Sections 3 and 4 say "keep what the courts don't throw out."

Section 4 contains cleanup statements.

Signed is next to a "great big beautiful signature." :)

I believe the entire executive order to be a waste of time quite frankly. I'd rather have federal law enforcement and the Justice Department deal with the greater crime of inciting violence (again including ones like January 6).

So I do agree with the president on most things. This is one of the things that I consider unproductive even though I don't approve of burning our flag.

James and Sam - first, thank you both for your service. I have nothing but respect for people who selflessly defend my freedom. I may not like seeing the flag burned or people kneeling during the anthem, but to me, freedom of speech is more important than a piece of cloth. If athletes or celebrities want to use their platform to make a statement, that is their right. At the same time, they work for an employer, and if the NFL or anyone else sets rules about that, they take the risk of being disciplined or even fired. That is how free speech and private employment interact. The government has no business policing those actions.

Lars - I think your description of the German approach is rational. There always has to be a balance between protecting society and protecting the freedom of the individual. It is a tightrope, and you cannot always lean too far in either direction. That is the same debate we have with vaccines: your freedom to choose what goes into your body versus society's right to protect itself from dangerous pathogens. Speech works the same way. It has limits when it crosses into clear harm.

Bill - as for the executive order, I see it as unnecessary. We already have laws on the books to address threats, violence, and property destruction. Symbolic protest, even if it offends, is not hurting anyone. Making a crime out of it feels more like political theater than a real solution. This president certainly does like using his pen a lot. :)

James - mmm... tacos... with extra sour cream and Frank's hot sauce.

And by the way, this is exactly the kind of discussion I was hoping to have here in the Captain's Log. A place where we can talk about politics and other topics respectfully and like mature adults. On other platforms like Facebook or Twitter, it always seems to devolve into mudslinging, name calling, and ad hominem attacks. This has been excellent, gentlemen. Thank you for engaging in a thoughtful discussion with me. I honestly feel like I do not have another outlet for it.

Richard so on the eo we agree.   there are much bigger fish to fry

Richard Thank you for this.  I am fascinated with hearing the views of different people, especially from countries outside of the US.  I believe it helps me be more informed and its always good to remind us of the value our neighbors and their views.  These are the things that inform our voting.  Not one contributer advocated for breaking the law.  In that we all seem to agree.  In this polarized political climate, it is easy to forget the massive common ground that we share.  Well done!

Thanks to the "Captain" for stimulating this very interesting, very well considered and very relevant discussion, Here in the UK we have had a lot of intolerance and division, over brexit for example and most recently immigration. In all this "freedom of speach" is much discussed. My tiny contribution to all these issues is that they (the issues) are all generally complicated and very nuanced and the biggest danger is in reducing them to slogans and one-liners, a popularist (dare I say Trumian) trick, whch is so easy to arouse and alarm people, (the popular press does it as well) and in my view is itself a clear and present danger.

Bill - yes, we do agree. The executive order is a waste of time. There are much bigger issues to focus on. I think a lot of executive orders (not just Trump's) have been theater. But that's a whole different discussion.

Matt - exactly. No one here is advocating breaking the law. To me, it is like what people do in their own bedrooms. As long as they are not hurting anyone else, the government has no say in it. The same applies to flag burning. If I burn my own flag as a protest without harming anyone or destroying property, that is freedom of speech.

Peter - I agree with you. One of the problems today is that too many people see everything in black and white. Good or evil, true or false, right or wrong. Life is not Boolean. We are taught as children that things are always this or that, and a lot of religions reinforce it with ideas like sin - without exceptions. But part of becoming a mature adult is realizing that life is made up of shades of gray. Very few things are absolute. Even with something like "thou shalt not kill," there are questions. What about self-defense? What about protecting someone else? That is why we need a legal system and wise judges who can weigh those questions with experience.

Speaking for myself, at 52 I look back at 20-year-old me and realize I was an idiot. Even 40-year-old me was an idiot. You live, you learn, and hopefully you gain the wisdom to see the nuance.