Ken White, AKA Popehat, in a Bluesky thread on Monday’s executive order:

The Supreme Court has repeatedly held that the First Amendment protects flag burning from prosecutions aimed at its offensiveness or its tendency to profane a national symbol. That’s a generation old.

Now the FedSoc mids in the Administration have a Bright Idea: what if we prosecuted flag burning not as flag burning but on theory that it falls under the “fighting words” or incitement exceptions?

Except this is not, in fact, a particularly good idea.The “fighting words” exception is defunct. It hasn’t been used by the Supreme Court to justify a speech restriction in living memory and it was specifically rejected as a basis to uphold flag burning laws.[…]

“Incitement” is dumb too. Incitement means speech INTENDED and LIKELY TO cause IMMINENT lawless action. That means “go beat up this guy.” It does NOT mean “hey I have an unpopular opinion.” Courts have not upheld “incitement” as a “heckler’s veto” […]

It’s easy to say why. Saying “you can prosecute flag burning as incitement because it makes people really mad” allows you to say “you can’t criticize Israel/denounce Trump/preach Islam/say reality TV suck because it makes people so mad.” It limits speech to what thug trash will tolerate.

He calls it a “performative decision, which is calculated to appeal to vapid totalitarian twats” and I couldn’t possibly improve on that description.