On August 25, 2025, President Donald Trump signed an executive order in the Oval Office that set off a firestorm across the political spectrum, reigniting one of America’s most emotionally charged debates: the burning of the American flag. The order, which threatens violators with up to a year in prison, comes despite decades-old Supreme Court rulings that have firmly protected flag burning as a form of free speech.
The move was not entirely unexpected. For years, Trump has voiced his disdain for flag desecration, even tweeting after his 2016 election victory that “there must be consequences” for anyone who burns the flag, such as jail or loss of citizenship. Still, the executive order’s arrival in the late summer of 2025, following a season marked by heated protests and high-profile flag burnings at anti-Israel and anti-ICE demonstrations, has stirred the pot in Washington and beyond.
According to the Associated Press, the executive order directs the Justice Department to investigate and prosecute flag burning, but only under certain conditions. Specifically, Attorney General Pam Bondi is authorized to act if the flag burning involves other federal crimes, such as violent acts, hate crimes, illegal discrimination, or conspiracies to violate civil rights. The order stipulates that prosecutions must not infringe on the First Amendment rights of suspects, and it delegates state and local cases to their respective authorities.
“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,” the order states, as reported by AP.
Trump didn’t mince words when signing the order. “You burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month,” he declared, promising swift enforcement and predicting that the act would “stop immediately.” The president also argued, “When you burn the American flag, it incites riots,” referencing recent unrest in Los Angeles where flags were burned alongside violent acts. Still, he provided no concrete examples of such riots stemming directly from flag burning.
Yet, the order’s legal footing is far from solid. The Supreme Court, in two landmark decisions—Texas v. Johnson (1989) and United States v. Eichman (1990)—ruled that burning the American flag is a constitutionally protected act of political expression. The late conservative Justice Antonin Scalia, a jurist Trump has often praised, sided with the majority in both cases. As Scalia once explained, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
The president’s executive order appears to acknowledge these precedents, stating that prosecution is only possible if the act of burning the flag “is likely to incite imminent lawless action” or amounts to “fighting words.” The order also calls for Attorney General Bondi to pursue litigation challenging the 1989 ruling, with an eye toward getting the issue back before a Supreme Court that is now more conservative than it was decades ago.
Bondi, for her part, expressed gratitude for the opportunity. “Thank you for protecting the American flag, and we’ll do that without running afoul of the First Amendment as well,” she told Trump, according to AP.
While the Trump administration and its supporters argue that the order is carefully crafted to respect constitutional boundaries, not everyone on the right is convinced. The conservative movement, normally united behind Trump, found itself unusually divided. Georgia radio host Erick Erickson was blunt: “While I agree with the sentiment, it is unfortunately well-settled constitutional law that burning the flag is a matter of free speech and the executive does not get to create crimes.” Commentator Jesse Kelly went even further, declaring, “I would never in a million years harm the American flag. But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.”
Others took a more nuanced view. Fox News host and former Justice Department official Mark Levin argued that the order didn’t actually conflict with Supreme Court decisions, noting that its language is “replete with qualifiers that strip it of any discernible meaning.” Ed Whelan, the Ethics and Public Policy Center’s Antonin Scalia Chair in Constitutional Studies, added, “‘To the fullest extent possible’ sounds aggressive, but it actually means ‘within the bounds permitted by law.’”
Vice President JD Vance weighed in on the controversy, posting on X, “Few things. 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.” Rehnquist, then the chief justice, was in the minority on the 1989 decision and wrote that “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.”
Civil liberties advocates and constitutional scholars, meanwhile, have lined up in opposition. Bob Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression, stated, “While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity—even if many Americans, including the president, find it ‘uniquely offensive and provocative.’” G.S. Hans, a Cornell University law professor, observed, “I don’t think this is something that has been a big problem. It’s a solution in search of a problem.”
The executive order goes even further by targeting foreign nationals, who could face visa revocation, deportation, or other immigration consequences if found guilty of flag desecration. However, the Constitution forbids stripping citizenship from natural-born Americans, a point noted in the Associated Press’s coverage.
Throughout the debate, one thing is clear: the American flag remains a potent symbol, capable of stirring deep passions on all sides. Whether Trump’s executive order will withstand judicial scrutiny or simply serve as political theater remains to be seen. But for now, the battle lines are drawn, and the stars and stripes are once again at the center of America’s ongoing struggle to define the limits of free expression.
