The Josh Hammer Report: Trump Is Right Again: Flag Burning Is Appalling and Not Protected ‘Speech’

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Ever since the destructive Antifa/Black Lives Matter riots of 2020, it has been clear that the sanctity of the American flag—perhaps the nation’s last true unifying cultural and political touchstone—is threatened more than at any time since the Civil War. On August 25, 2025, President Trump took decisive action stop the bleeding. He signed an executive order that criminalizes flag burning—at least when it “is likely to incite imminent lawless action” or otherwise constitutes “fighting words”—with offenders facing a mandatory one‑year prison sentence.

This bold move is not merely symbolic; it’s a restoration of allegiance to the foundational totems that unite us as a people and a nation.

The American flag is not a mere inanimate banner. It is the embodiment of our national identity, the collective sacrifice of generations, and the unity of otherwise-diverse peoples under shared principles and a shared polity. When reprobates desecrate the American flag, they assault not merely fabric, but our American heritage and way of life. By enforcing tangible consequences for such rogue behavior, President Trump sends a clear message: National unity requires national respect.

Many legal critics are predictably howling, citing Texas v. Johnson (1989) and U.S. v. Eichman (1990). Indeed, Justice Scalia himself, while personally disapproving of flag burning as a practice, (erroneously) upheld its protection as First Amendment-protected free “speech.” But Trump’s executive order, on its face, only narrowly targets actions that genuinely provoke danger, riot, or civil unrest. And more generally, if controversially, Trump does shrewdly understand what even the great Scalia did not (though his colleague Chief Justice Rehnquist did): Flag burning should be viewed not as “speech,” but as conduct.

There is, or at least was intended to be, a massive First Amendment distinction between protected speech and non-protected conduct. That distinction has been blurred by decades of left-liberal and right-liberal constitutional jurisprudence, but the distinction remains for all who have any cursory familiarity whatsoever with the history and political theory of the American Founding.

Trump’s executive order also offers a profound civics lesson: an opportunity not merely to reflect upon the original meaning of the First Amendment, but to consider the broader, all-important debate about who gets to decide what the Constitution means in the first place. In channeling a departmentalist theory of independent congressional and executive interpretative duties as it pertains to our founding charter, Trump stands on firm historical footing—the same footing as President Lincoln long before him.

Flag burning is still relatively rare—and yet as acts, they ripple outward. In Los Angeles this past June, flag desecration was rampant. In that light, a firm stance against such behavior is not excessive—it’s preventative of metastasizing social anarchy and decay. President Trump’s order doesn’t erase protest; it preserves the boundary where protest becomes subversive, perhaps insurrectionary. Without order and national solidarity, there can be no liberty—let alone license—in the first instance.

This order is a testament to the Trump administration’s commitment to law, order, and patriotic integrity. Our flag deserves defenders; it now has a prominent one in the White House. And even more to the point: Yet again, Trump has chosen a fight that is simultaneously good policy, good politics, and good law. Democrats are left to gripe and to defend flag burners, placing them yet again on the wrong side of an 80/20 issue.

And that’s just where Trump wants them to be.

To keep up with me, follow me on Twitter/X, Instagram, and Facebook. You can listen to all episodes of “The Josh Hammer Show” at the Newsweek website or on Apple, Spotify, or wherever you get your podcasts—as well as select radio stations across the country. Make sure to also order my new book, Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West! (Signed copies are available for purchase!)

Our additional highlighted recent Newsweek op-eds include selections from Gordon G. Chang, Nikki Haley and Bill Drexel, and Bernard S. Sharfman.

Have a great rest of your week and a relaxing Labor Day weekend! We’ll see you back here next week.

° Spotlight

The Art of the Deal, Russia-Ukraine Style

Two months after the breathtaking Operation Midnight Hammer strikes against Iran’s nuclear facilities and the ceasefire with Israel that soon followed, President Donald Trump has once again upended conventional foreign policy wisdom. After years of escalatory rhetoric, moral posturing and seemingly endless funding packages, Trump’s twin high-profile summits with Russian President Vladimir Putin in Alaska and Ukrainian President Volodymyr Zelensky and other European leaders in Washington offer the clearest roadmap yet to finally end the tragic war in Ukraine.

And perhaps the toughest part for the foreign policy establishment to swallow: It would come to pass not in spite of Trump’s nationalist “America First” instincts but because of them.

Read the full column.