On Monday, August 25, 2025, President Donald Trump signed a new executive order titled "Prosecuting Burning of the American Flag," reigniting a long-standing national debate over free speech, patriotism, and the limits of government power. The order, which directs the Justice Department to prosecute individuals who burn American flags, has quickly drawn fire from legal experts and civil liberties advocates across the political spectrum, who argue that it directly challenges decades of Supreme Court precedent protecting flag desecration as free speech.
At a press event in the Oval Office, Trump described the order as "very important," insisting that "all over the country, they’re burning flags" and claiming that such acts "incite riots at a level that we’ve never seen before." Gesturing toward a sheet of paper on his desk, Trump added, "When you burn the American flag, it incites riots at a level that we’ve never seen before. People go crazy in a way—both ways—there are some that go crazy for doing it, there are others that are angry at them for doing it." He continued, "If you burn a flag, you get one year in jail. No early exits, no nothing. You get one year in jail. If you burn a flag, you get—and what it does is—incite to riot. I hope they used that language, by the way. Incite to riot. And you burn a flag, you get one year in jail. You don’t get ten years, you don’t get one month, and it goes on your record."
But for all the presidential bluster, the reality is that the Supreme Court has repeatedly and emphatically ruled that flag burning is a protected form of political expression under the First Amendment. The most notable decision came in 1989, when the Court decided Texas v. Johnson, a case involving Gregory Lee Johnson, a young activist who burned an American flag outside Dallas City Hall to protest the 1984 Republican National Convention. Johnson was convicted under a Texas law prohibiting "desecration of a venerated object," sentenced to one year in prison, and fined $2,000 (now equivalent to over $6,000). However, the Texas Court of Criminal Appeals overturned his conviction on free speech grounds, and the Supreme Court, in a narrow 5-4 decision, affirmed that ruling.
Justice William Brennan, writing for the majority, declared, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." According to Texas v. Johnson, the context of Johnson’s protest—an organized demonstration with speeches, slogans, and literature—made clear that his flag burning was expressive conduct. The Court rejected Texas’s arguments that banning flag burning was necessary to preserve the flag as a symbol of national unity or to prevent breaches of the peace. Brennan’s opinion emphasized that the government cannot prescribe a single meaning to a symbol like the flag, nor criminalize alternative interpretations.
Public reaction to the decision was swift and fierce. Many Americans saw flag burning as a grave insult to the nation’s values and history. Chief Justice William Rehnquist, dissenting, compared flag burning to "evils" such as "murder, embezzlement, [and] pollution." Justice John Paul Stevens argued that the ruling "diminishes the value of an important national asset." Polling at the time showed that 71 percent of Americans favored a constitutional amendment to overturn the decision.
Congress acted quickly, passing the Flag Protection Act of 1989, which criminalized a wide range of acts against the flag, including burning, mutilating, or trampling upon it. President George H.W. Bush, though personally opposed to flag burning, allowed the bill to become law without his signature, acknowledging its likely unconstitutionality. But the Supreme Court again intervened in 1990, striking down the law in United States v. Eichman—another 5-4 decision—reaffirming that flag burning, even when deeply offensive, is protected speech.
Trump’s new executive order attempts to sidestep these precedents by focusing on exceptions to the First Amendment, specifically acts that "incite imminent lawless action" or constitute "fighting words." The order’s preface claims, "Notwithstanding the Supreme Court’s rulings on First Amendment protections, the court has never held that American flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected." In theory, speech that incites violence or lawlessness can be restricted, as established in the 1969 case Brandenburg v. Ohio. But as Texas v. Johnson made clear, flag burning in and of itself does not meet this high bar. Justice Brennan wrote, "No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the federal government as a direct personal insult or an invitation to exchange fisticuffs."
Legal analysts have noted that Trump’s order is unlikely to withstand judicial scrutiny. As Vox points out, "The order is in conflict with Supreme Court precedent and is likely unconstitutional." The order’s language is filled with caveats, directing the Attorney General to "prioritize the enforcement to the fullest extent possible of our nation’s criminal and civil laws against acts of American flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment." This, critics argue, is legal sleight of hand—sound and fury signifying little, given the clear legal protections already in place.
Some conservatives have acknowledged the constitutional issues but argue that a double standard persists. Conservative activist Christopher Rufo commented on social media, "I’m sorry, but as long as this is the status quo, I’m not going to work myself into a state of hysteria about Trump’s executive order on burning the American flag." Rufo was referencing recent prosecutions for desecrating pro-LGBTQ symbols, but as Reason and Vox both note, those cases involved theft and property destruction—crimes regardless of the flag’s symbolism.
Trump’s order also goes further than its predecessors by directing federal agencies to "deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States" for non-citizens involved in flag burning. While the First Amendment theoretically applies to non-citizens, the Supreme Court’s recent approach to executive power and deportations offers little reassurance for those affected.
Interestingly, Trump compared his new order to a non-existent "Statue and Monument Act," claiming that a previous executive order after the George Floyd protests had ended vandalism of monuments. In reality, there is no such act—Trump had signed an executive order in 2020 prioritizing monument protection, but there is no evidence it led to a surge in prosecutions, and an executive order is not the same as an act of Congress.
Justice Antonin Scalia, though personally opposed to flag burning, famously recognized the limits of government power. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," Scalia once said. "But I am not king." The current Supreme Court, despite its conservative majority, has shown no appetite for overturning the landmark free speech rulings of the late 20th century.
As the nation watches to see how the courts respond to Trump’s latest challenge, the enduring principle remains: in America, even the most offensive speech is protected—precisely because it is offensive to some. The flag, a symbol of freedom, endures not in spite of dissent, but because of it.
