Washington — President Trump signed an executive order Monday that seeks to punish people who burn the American flag, accusing those who do so of displaying hostility and contempt toward the United States.
Mr. Trump has for years threatened to crack down on flag burning. In 2016, he wrote on social media that anyone who burns the American flag should lose their citizenship or face jail time. During a 2024 speech before the National Guard Association of the United States, then-candidate Trump said he would work to pass a law imposing criminal penalties on those who burn the American flag.
In remarks from the Oval Office on Monday, Mr. Trump alleged that burning the American flag “incites riots” and said those who are prosecuted and convicted as a result of his directive would face one year in prison.
“The people in this country don’t want to see our American flag burned and spit on,” the president said.
Trump’s executive order on flag burning
Titled “Prosecuting Burning of the American Flag,” Mr. Trump’s executive order does not direct the attorney general to prosecute those who burn flags for the act itself. Rather, it says the Justice Department should bring cases “against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” Examples of those laws include “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace.”
The directive acknowledges a 36-year-old Supreme Court decision that found flag burning is protected speech but adds 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’” may not be entitled to the same protection under the First Amendment.
The order directs the secretary of state, attorney general and secretary of homeland security to take action against foreign nationals who have engaged in “American flag-desecration activity,” including by revoking their visas or residence permits, or seeking their removal from the U.S.
The attorney general, Mr. Trump’s executive order states, “shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.”
Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, said in response to Mr. Trump’s executive order that the president does not have the power to change the First Amendment.
“Flag burning as a form of political protest is protected by the First Amendment. That’s nothing new. 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,’” he said in a statement. “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.”
Is flag burning protected by the First Amendment?
The president’s directive appears aimed at re-opening the question in the courts of whether flag burning is constitutionally protected speech. While Mr. Trump believes that it should be illegal to burn the American flag and sought to unilaterally target those who engage in this conduct, the Supreme Court ruled in 1989 that the act is expressive conduct covered by the First Amendment.
The 5-4 decision in the landmark case Texas v. Johnson arose from Gregory Lee Johnson’s conviction under a Texas law that prohibited desecration of a venerated object. Johnson had burned an American flag outside of Dallas City Hall in protest of then-President Ronald Reagan’s policies in 1984. He was sentenced to one year in prison and fined $2,000.
But the Supreme Court ruled that Johnson’s conviction for flag desecration was inconsistent with the First Amendment, since his flag burning constituted protected expressive conduct. Among the members of the five-justice majority were Justices Antonin Scalia and Anthony Kennedy, who often served as the swing vote after Justice Sandra Day O’Connor retired.
During a 2012 interview with CNN, Scalia, a conservative stalwart, defended the high court’s decision on flag burning and reiterated that the act is a form of expression.
“If I were king, I would not allow people to go around burning the American flag,” he said. “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. That was the main kind of speech that tyrants would seek to suppress.”
Scalia told CNN that “burning a flag is a symbol that expresses an idea — I hate the government, the government is unjust, whatever.”
Referencing the 1989 ruling, Mr. Trump told reporters in the Oval Office on Monday that the case was decided by a “very sad court.”
One year after that decision, the Supreme Court ruled in the case United States v. Eichman that a federal law criminalizing flag burning was unconstitutional.
Congress had passed that law, known as the Flag Protection Act, in 1989 in response to the high court’s ruling in Texas v. Johnson. The law made it a crime to knowingly mutilate, deface, physically defile, burn or trample upon the American flag, and violators faced a fine or up to one year in prison.
But in another 5-4 decision, again with Scalia and Kennedy in the majority, the Supreme Court ruled that prosecutions of protesters who burned flags in violation of the Flag Protection Act were inconsistent with the First Amendment.
“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering,” Justice William Brennan wrote for the majority.
Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.
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