President Trump signed an executive order Monday instructing the Justice Department to pursue criminal charges against individuals who “desecrate” the American flag, including burning it. This action directly challenges a Supreme Court ruling that protects such acts as a form of free speech.
“All over the world they burn the American flag,” Trump stated at the Oval Office during the signing. “The people in this country don’t want to see our American flag burned and spit on and by people that are, in many cases, paid agitators.”
While Trump implied he aimed to prosecute flag burners in a manner consistent with Supreme Court rulings, he also stated his belief that flag burning should not be considered protected speech. “If you burn a flag, you get one year in jail,” Trump said. “No early exits, no nothing… And it goes on your record.”
The executive order directs Attorney General Pam Bondi to prosecute those who burn or desecrate the American flag in ways that cause “harm unrelated to expression, consistent with the First Amendment,” according to the directive. “This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.”
The order also instructs the DOJ to refer flag desecration cases to state and local authorities, even though many of these jurisdictions previously relied on statutes that the Supreme Court invalidated over thirty years ago.
This action reignites a longstanding political debate regarding patriotism and protest, which the Court attempted to resolve in 1989. In Texas v. Johnson, a 5–4 decision authored by Justice William Brennan Jr., the justices affirmed that the First Amendment safeguards expressive conduct like burning the American flag. Justice Anthony Kennedy, in a separate concurring opinion, recognized the ruling’s unpopularity but emphasized that “the flag protects those who hold it in contempt,” highlighting that constitutional protections do not depend on the popularity of the speech.
Trump’s order seems intended to both challenge and limit that precedent. “They called it freedom of speech,” Trump said, referring to the decision in Texas v. Johnson. “But there’s another reason, which is perhaps much more important—it’s called death. Because what happens when you burn a flag is the area goes crazy… it incites riots at levels that we’ve never seen before.”
Beyond encouraging federal prosecutors to press charges, the order directs the administration to implement extensive immigration-related measures against non-citizens who engage in flag desecration, including to “deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal,” according to the order.
“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,” the order stated.
The order describes the flag as “the most sacred and cherished symbol of the United States,” characterizing acts of desecration as “uniquely offensive and provocative” and “statement of contempt, hostility, and violence against our Nation.”
The directive’s immigration provisions expand the initiative beyond criminal enforcement to encompass civil and administrative penalties, potentially offering greater insulation from immediate constitutional challenges, while simultaneously raising distinct free-speech concerns.
Monday’s order follows a period in which images of flag burnings have been frequently shared online and on cable news, including at during Prime Minister Benjamin Netanyahu’s address to Congress, and on July 4.
Trump has advocated for stricter penalties for flag burning for years. In a 2024 , he stated that those who desecrate the flag should face a one-year prison sentence and has occasionally suggested a constitutional amendment to criminalize the act.
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