On August 25, 2025, President Donald Trump signed a sweeping executive order targeting the burning of the American flag, a move that reignites a decades-old debate over patriotism, protest, and the boundaries of free speech in the United States. The order, which directs the Justice Department to investigate and prosecute those who burn or otherwise desecrate the flag, arrives in direct challenge to a landmark 1989 Supreme Court ruling that recognized flag burning as protected political expression under the First Amendment.
"You burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month," Trump declared in the Oval Office as he signed the order, according to the Associated Press. "You get one year in jail, and it goes on your record, and you will see flag burning stopping immediately." Flanked by Vice President JD Vance, Attorney General Pam Bondi, Defense Secretary Pete Hegseth, and other top officials, Trump made clear that his administration intends to test—and potentially overturn—the Supreme Court’s ruling in Texas v. Johnson.
The 1989 decision, a 5–4 ruling, held that burning the American flag is a form of symbolic speech protected by the Constitution. The late Justice Antonin Scalia, a conservative icon whom Trump has repeatedly praised, was among the justices in the majority. In a memorable concurrence, Justice Anthony Kennedy wrote, "the flag protects those who hold it in contempt," emphasizing that constitutional rights are not contingent on the popularity of the speech in question.
Despite this precedent, Trump’s executive order asserts that there remains legal room to prosecute flag burning if it "is likely to incite imminent lawless action" or amounts to "fighting words." The order also calls on Attorney General Bondi to pursue litigation aimed at challenging the 1989 decision, in hopes of bringing the issue before a Supreme Court now more conservative than in decades past, with three justices appointed by Trump himself.
"Thank you for protecting the American flag, and we’ll do that without running afoul of the First Amendment as well," Bondi told the president, as reported by the Associated Press. Yet, civil liberties advocates and constitutional scholars are deeply skeptical—if not outright dismissive—of the order’s legality and its prospects for surviving judicial scrutiny.
Bob Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression (FIRE), told Axios, "President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t." He continued, "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.’"
The order’s language is emphatic, describing flag desecration as "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." Trump, for his part, argued, "what happens when you burn a flag is the area goes crazy… it incites riots at levels that we've never seen before." However, as Cornell University law professor G.S. Hans observed in an interview with the Associated Press, "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 does not outright criminalize flag burning but directs the Attorney General to prioritize enforcement against cases of "flag desecration" where other laws are violated, such as violent crimes, hate crimes, illegal discrimination, crimes against property, and conspiracies. If the Justice Department or another federal agency determines that a flag burning incident violates state or local laws—such as open burning restrictions—the order instructs that the case be referred to the appropriate local authorities. The order further authorizes the Attorney General to pursue litigation to clarify the scope of First Amendment exceptions in this area.
Significantly, the order also includes broad immigration-related provisions. Foreign nationals found to have desecrated the American flag could face denial or revocation of visas, residency permits, or naturalization, and may even be subject to deportation. The directive states, "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." These civil and administrative penalties, the order suggests, may be less vulnerable to immediate constitutional challenge, though they raise their own free-speech concerns.
Trump’s push to penalize flag burning is not new. Since his election in 2016, he has repeatedly called for consequences for those who burn the flag, including jail time and, at times, loss of citizenship—a punishment the Constitution forbids for natural-born Americans. In a 2024 Fox News interview, Trump dismissed constitutional objections, saying, "Now, people will say, 'Oh, it's unconstitutional.' Those are stupid people." He revived the call for a year-long jail sentence during a June speech at Fort Bragg, and Senator Josh Hawley (R-Mo.) soon introduced legislation to enhance penalties for those who burn the flag while committing a federal offense.
Recent protests have kept the issue in the headlines. Images of flag burnings have circulated widely online and on cable news, including during Prime Minister Benjamin Netanyahu’s address to Congress in Washington, D.C., and at New York’s Washington Square Park on July 4, 2025. The White House fact sheet accompanying the executive order referenced these incidents as evidence that flag burning is often accompanied by "violent acts and other conduct threatening public safety." Still, critics argue that such incidents are rare and do not constitute a national crisis.
Legal experts remain unconvinced that Trump’s order will withstand the test of the courts. As Robert Corn-Revere put it, "You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say." The Supreme Court has twice struck down congressional attempts to criminalize flag desecration, most recently in 1990, and even conservative justices like Antonin Scalia have acknowledged the constitutional protection of such symbolic speech. Scalia once told CNN, "If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged—and it is addressed in particular to speech critical of the government."
As the Justice Department begins implementing Trump’s executive order, the United States finds itself once again at the crossroads of national symbolism and individual liberty. Whether the courts will allow a new chapter in the long-running battle over the flag remains to be seen, but the conversation about what it means to be American—and to protest as an American—shows no sign of fading.
