On August 25, 2025, President Donald Trump signed an executive order that has reignited one of America’s most emotionally charged debates: whether burning the American flag should remain protected as free speech. The order, which directs Attorney General Pam Bondi to "vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag," is the boldest attempt in decades to challenge a 35-year-old Supreme Court precedent. But in the end, does it really change the law—or is it a calculated move to push the issue back to the nation’s highest court?
Trump’s proclamation, delivered with characteristic bravado at a White House signing ceremony, seemed simple enough. “You burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month,” he declared, adding, “It goes on your record, and you will see flag burning stopping immediately.” But as legal experts and civil rights advocates were quick to point out, the executive order itself doesn’t actually make flag burning a crime—nor can it, under current law. As Yale Law Professor Jed Rubenfeld noted in The Free Press, any executive order imposing jail time for flag burning would be “unconstitutional on its face.”
At the heart of this controversy lies the Supreme Court’s 1989 decision in Texas v. Johnson, a 5-4 ruling that found flag burning during political protests to be protected expressive conduct under the First Amendment. The late Justice Antonin Scalia, a conservative icon, joined the majority. “We do not consecrate the flag by punishing its desecration, for in doing so, we dilute the freedom that this cherished emblem represents,” wrote Justice William J. Brennan for the Court. The ruling was reaffirmed a year later in United States v. Eichman, when the Court struck down a federal law criminalizing flag desecration.
That hasn’t stopped politicians from trying to overturn or sidestep the ruling. After Texas v. Johnson, Congress passed another law banning flag burning, only to see it struck down. President George H.W. Bush, during his 1988 campaign, called for a constitutional amendment to ban the practice, but, as Fox News analyst Brit Hume recently recalled, “He didn’t pretend he could ban it by an executive order that flies in the face of constitutional speech protections.”
Trump’s order is different, but only just. Instead of criminalizing flag burning outright, it instructs the Justice Department to prioritize prosecuting crimes committed alongside flag burning—such as violent acts, hate crimes, or property destruction. Foreign nationals who burn the flag could face visa revocation, loss of residency, or even deportation. The order’s language is careful to note that enforcement should target "violations involving desecration of the American flag under applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment." In effect, it’s a workaround: prosecute the conduct, not the expression—unless the conduct is flag burning.
Critics, however, see the order as a political stunt designed to provoke a legal battle. According to Creators Syndicate, legal experts argue that prosecutorial discretion should not be used to target protected expression. “If it cannot be prohibited, how can it be a legitimate basis for prosecutorial discretion?” Rubenfeld asked. Bob Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression, put it more bluntly: “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.’”
Trump’s order comes at a time when the Supreme Court has a 6-3 conservative majority, with three of the current justices nominated by Trump himself. The administration clearly hopes to push the question back to the Court, betting that the new majority might be more sympathetic to restricting flag desecration. Vice President JD Vance made his position clear on social media the day after the order was signed: “Texas v. Johnson was wrong and William Rehnquist was right.” Rehnquist, in his dissent to the 1989 decision, argued that flag burning was “the equivalent of an inarticulate grunt or roar… most likely to be indulged in not to express any particular idea, but to antagonize others.”
Public opinion on the issue is complicated. According to Milwaukee Independent, a handful of polls over the years show that while most Americans find flag burning unacceptable, they are less likely to support making it illegal—especially when it comes to political protest. The emotional resonance of the flag is undeniable. “Millions and millions of Americans regard it with almost mystical reverence, regardless of what sort of social, political or philosophical beliefs they may have,” Chief Justice Rehnquist wrote in his dissent. For many, the flag is a symbol of the sacrifices made by servicemen and women and their families.
But for defenders of the First Amendment, the issue is clear-cut. As Antonin Scalia once said, “As I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.” That sentiment has been echoed by civil liberties advocates, who argue that the right to criticize—even to offend—is at the core of American freedom.
Not all conservatives are on board with Trump’s approach. Conservative talk radio host Jesse Kelly, for instance, blasted the order as an overreach: “I would never in a million years harm the American flag,” he said on social media. “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 citizen. And if I ever feel like torching one, I will.”
Meanwhile, Trump’s personal relationship with the flag has become a spectacle of its own. His habit of theatrically hugging, stroking, and kissing the American flag at rallies has been alternately praised as patriotic and mocked as performative. These displays, according to critics, reduce the flag to a political prop, while supporters see them as heartfelt tributes to American values.
Despite all the sound and fury, the legal reality remains unchanged—for now. Congress, not the president, has the power to set penalties for crimes, and the Supreme Court’s rulings in Texas v. Johnson and United States v. Eichman are still the law of the land. As G.S. Hans, a First Amendment scholar at Cornell, observed, “I don’t think this is something that has been a big problem. It’s a solution in search of a problem.”
Whether Trump’s order is a sincere attempt to protect a cherished national symbol or a calculated move to energize his political base and challenge settled law, one thing is certain: the American flag, and what it represents, will remain at the heart of the nation’s ongoing debate over the meaning of freedom.
