DON'T FORGET: New episode of the Sphere Podcast!

On this episode of the Sphere Podcast, Pascal-Emmanuel Gobry, Publisher of Sphere Media, interviews Luke Niforatos, co-founder and Executive Vice President of the Foundation for Drug Policy Solutions about, you guessed it, pot. Marijuana. Cannabis. The ganj. (Yes, nobody's said that since 1972.) The issue of marijuana rescheduling has been in the news lately, with President Trump saying he's considering it. Luke explains what marijuana rescheduling is, and why it would be a very big deal. Then the two have a broader conversation about marijuana and marijuana policy: why it really does melt your brain, why allowing big corporations to sell it would be a disaster, the evolving science on marijuana, why it's not just a matter of personal choice, the difference between marijuana and alcohol, and more.

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Yes, Flag-Burning Should Be Banned

President Trump recently signed an executive order on August 25, 2025, directing federal authorities to prosecute flag burning despite Supreme Court precedent protecting it as free speech. The order directs the Justice Department to investigate instances of flag burning, and Trump stated "If you burn the flag, you get one year in jail—no early exits. No, nothing." While the order doesn't directly criminalize flag burning, it instructs Attorney General Pam Bondi to prioritize enforcement against cases of "flag desecration" where existing laws were violated, such as open burning restrictions, disorderly conduct, or property destruction laws. The order also includes provisions for denying, prohibiting, terminating, or revoking visas, residence permits, naturalization proceedings, and other immigration benefits for foreign nationals who engage in flag desecration.

Cue endless shrieking from the galleries on X dot com.

The idea that the First Amendment of the Constitution protects flag burning has always seemed strange to us, and has seemed to us like one of the very few mistakes in the distinguished career of the great Justice Antonin Scalia.

In the aftermath, JD Vance put it thus on X: "1) Antonin Scalia was a great Supreme Court Justice and a genuinely kind and decent person. 2) The President's EO is consistent with Texas v. Johnson. 3) Texas v. Johnson was wrong and William Rehnquist was right."

This seems to us to exactly summarize the situation.

When the Supreme Court struck down flag desecration laws in Texas v. Johnson (1989), Chief Justice William Rehnquist authored a forceful dissent that has become the foundation for conservative arguments on this issue. Joined by Justices White and O'Connor, Rehnquist opened with Justice Holmes' wisdom: "A page of history is worth a volume of logic." His central thesis was unequivocal: "For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning."

Rehnquist's dissent provided extensive historical documentation spanning from the Revolutionary War through Vietnam, arguing that the flag transcends ordinary political discourse. He contended that flag burning represents "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." Most importantly, he argued that Texas's law "deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy."

He concluded: "The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."

More broadly, it seems important to us for conservatives generally, who often claim to be originalists, to remember what the original purpose of the First Amendment was: not to create a blanket license for all forms of self-expression, but to permit citizens of the Republic to debate issues of public policy.

An obvious example of where this distinction is relevant: obscenity laws. Every state in the union had obscenity laws at the time of the passing of the Bill of Rights, and nobody until the 1960s thought that the First Amendment protected obscenity, even though obscenity is "speech". Obscenity does nothing to help free citizens in a Republic debate the public policy of the government, and therefore it is irrelevant to the First Amendment.

Another obvious, and more directly relevant example, is blasphemy laws. Few people even remember today that American courts accepted content-based restrictions on offensive expression through blasphemy laws for over 150 years. The parallel is obvious: in both cases, what is at issue is not one particular ideology or point of view, but an attack upon a symbol which is seen as the very basis of civic order.

In Robertson v. Baldwin (1897), the Supreme Court stated in dicta that "the freedom of speech and of the press does not permit the publication of…blasphemous or indecent articles," acknowledging that blasphemy fell outside First Amendment protection.

State courts consistently upheld blasphemy convictions with reasoning directly applicable to flag protection. In People v. Ruggles (1811), New York Chief Justice James Kent explained that blasphemy laws protected not religious doctrine but civil order: "No government among any of the polished nations of antiquity, and none of the institutions of modern Europe...ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity...the general religion of the community to be openly insulted and defamed."

Pennsylvania's Updegraph v. Commonwealth (1824) articulated the parallel most clearly. Justice Thomas Duncan explained that blasphemy laws seek "not to force conscience by punishment, but to preserve the peace of the country by an outward respect to the religion of the country." The state prosecuted blasphemy not "as sins or offences against God, but crimes injurious to, and having a malignant influence on society." This reasoning, that is to say, protecting social cohesion through respect for sacred symbols, applies to flag protection.

The great Justice Joseph Story, writing in Vidal v. Girard's Executors (1844), reaffirmed that Christianity was part of American common law "in the qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public." Story, along with other prominent early jurists including James Wilson, Zephaniah Swift, and James Kent, all accepted blasphemy proscriptions as part of American law.

Even as late as 1941, the Tenth Circuit in Oney v. Oklahoma City upheld an anti-blasphemy ordinance against a First Amendment challenge.

Another useful analogue is the Supreme Court's decisions upholding restrictions on Communist Party activities from the 1920s through 1950s. In Gitlow v. New York (1925), the Court upheld Benjamin Gitlow's conviction for publishing a "Left Wing Manifesto" advocating socialist revolution. Justice Edward Sanford established that states may punish utterances "endangering the foundations of organized government and threatening its overthrow by unlawful means." The Court held that "a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State."

In other words, there is a fundamental difference between expressing a particular point of view or ideology, and rejecting the fundamental legitimacy of the American constitutional order itself. This is what Communist agitation, and burning the American flag, both do.

We could go on.

The Supreme Court's 1907 decision in Halter v. Nebraska upheld state power to restrict flag use, establishing crucial precedent. Justice Harlan wrote for the Court: "For that flag every true American has not simply an appreciation, but a deep affection... Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot."

The Court recognized state authority to protect symbols essential to public welfare: "A state possesses all legislative power consistent with a republican form of government, and it may by legislation provide not only for the health, morals and safety of its people, but for the common good as involved in their wellbeing, peace, happiness and prosperity."

The Constitutional argument is one thing, but there is also political reality.

The same liberals who protest against this executive order are happy when people are prosecuted for desecrating the LGBTQ flag.

And in fact, there is a nice poetic justice in the fact that the President's EO provides for the same workaround that was used to send people to prison for desecrating that flag, which is selectively prosecuting other laws such as laws against property damage.

A society will always defend its sacred totems.

America's sacred totem should be the Stars and Stripes.

Policy News You Need To Know

#ChineseStudents — Yesterday in the Oval, President Trump announced that the United States would allow 600,000 Chinese students to study at American universities. This would represent double the current number of Chinese students learning in the country. President Trump described it as a step toward improving relations with China, stating "It’s very important [to let them come in]… we’re going to get along with China." The move seems to be tied to supporting ongoing trade negotiations. Nevertheless, restrictionists would argue that Chinese students pose national security risks through potential espionage and intellectual property theft, particularly those in STEM fields who might transfer sensitive research back to China. They also contend that these students take university spots that should go to American citizens, undermine the "America First" agenda, and that many use student visas as a pathway to permanent immigration. The backlash has been particularly intense because this reversal appears to contradict Trump's campaign promises about limiting foreign influence in American institutions and prioritizing domestic students over international enrollment. Commerce Secretary Howard Lutnick made what seemed like a particularly bone-headed defense of the policy by suggesting that without the influx of Chinese students, "the bottom 15 per cent of universities would go out of business in America" because American students would no longer attend—in essence, arguing that top university spots shouldn't go to Americans so that Americans can go to lesser universities as a way to subsidize these. Hard to think of a less "America First" sentiment.

#GoodGovernment — However! Good move from Luttnick clawing back $7.4 billion from what he called a "slush fund" created by the Biden administration. Per our research, they seem to be right. The entity in question, Natcast (the National Center for the Advancement of Semiconductor Technology), was a private nonprofit entity created by the Biden administration to operate the National Semiconductor Technology Center (NSTC), which was mandated by the CHIPS Act to conduct semiconductor research, develop prototypes, and build workforce capabilities. The Trump administration alleges that Biden officials illegally circumvented federal laws prohibiting government agencies from establishing corporations by handpicking a "Selection Committee" that included Jason Matheny (who held Biden White House roles), Don Rosenberg (whose venture capital portfolio companies received $117 million in federal grants), and Brenda Wilkerson (a self-described social justice advocate). Just days before Trump's inauguration on January 16, 2025, the Biden administration finalized a 10-year agreement granting Natcast up to $7.4 billion in federal funding and notably removed standard "termination for convenience" clauses that would allow future administrations oversight flexibility. The Trump administration has declared this agreement void and illegal, with Secretary Lutnick stating that "Natcast served as a semiconductor slush fund that did nothing but line the pockets of Biden loyalists with American tax dollars," and has transferred operational control of the NSTC from Natcast to the National Institute of Standards and Technology (NIST) within the Commerce Department, effectively "clawing back" the $7.4 billion by invalidating the funding agreement rather than through a traditional recovery process U.S. Department of Commerce.

#LGBT — Great victory: in response to threats of criminal prosecution from the Department of Justice for performing trans surgeries, the University of Michigan hospital system will tomorrow announce they are ending "gender-affirming care" in the UM hospital system, Talking Points Memo reports.

#AI #Economy #LaborMarket — Aha! Here's a new and very interesting paper from Erik Brynjolfsson, Bharat Chandar, and Ruyu Chen at Stanford. What's key is that they use data from ADP, the giant HR software company, which is much more accurate and granular than most data used on studies of the labor market, which comes from surveys. And what do they find? In a word, "large-scale evidence of employment declines for entry-level workers in AI-exposed jobs." The most AI-exposed jobs, such as software developer and customer service representative, have been declining; meanwhile, the least AI-exposed jobs, have been growing. It's happening.

#Energy — From Bloomberg: "Wind-farm developer Orsted is caught in the crosshairs after Trump issued a stop-work order on the company’s Revolution project off Rhode Island on Friday — even though the development is already 80% completed. The move wiped 16% off Orsted’s share price, sending the already-struggling energy giant to a record low." The President has made his loud opposition to offshore wind farming very clear.

#Immigration #GoodGovernment — Transportation Secretary Duffy has announced enforcement actions against California, New Mexico, and Washington for failing to comply with the Trump Administration's English Language Proficiency Standards for commercial truck drivers. This is good, not just because it's good policy, even though it is (truck drivers should be able to read road signs), but because it shows follow through from this administration. President Trump tweeted about it, but then, the wheels of government actually moved.

#Ed — Ed has put forward new requirements and definitions for its Mental Health Service Professional Demonstration Grant Program. EPPC Scholars Mary Rice Hasson and Rachel N. Morrison submitted a public comment on the proposal, including supporting replacing the Department’s current priorities that incorporated “diversity” and “inclusivity” and that removed credentialing requirements for school psychologists. The scholars also supported the proposed prohibition on using program funds to promote or endorse gender ideology, political activism, racial stereotyping, and hostile environments for students of particular races. More here. Part of the ongoing dewokification. This is good.

#Woke #VibeShift — Quote of the day, via Rob Henderson: “88% of the students said they pretended to be more progressive than they are to succeed academically or socially. 80% of students said they submitted class work that misrepresented their real views to conform to the progressive views of the professor.”