In a controversial and potentially historic move, President Donald Trump has signed an executive order criminalising the burning of the American flag, directly challenging a landmark Supreme Court decision from 1989 that enshrined the act as a form of protected speech under the First Amendment.
The executive action, signed during a press event in the Oval Office on Monday, represents one of the most provocative legal manoeuvres of Trump’s second term, reigniting long-standing debates over patriotism, free expression, and constitutional boundaries. The order instructs federal prosecutors to pursue criminal charges against individuals who burn American flags during protests, and explicitly calls upon Attorney General Pam Bondi to review prior cases for potential violations of other statutes—such as environmental or public disorder offences—that could be used to retroactively prosecute past offenders.
The announcement arrives amid a string of sweeping executive decisions from the 47th President, who returned to office in January after defeating incumbent Joe Biden in a deeply polarising 2024 election. Since reclaiming the presidency, Trump has introduced a new travel ban, enacted hard-line immigration measures, and prioritised efforts to broker a peace agreement between Russia and Ukraine. His decision to criminalise flag burning marks a sharp pivot back to a domestic culture war issue that has been central to his rhetoric for nearly a decade.
A Challenge to Established Precedent
Flag burning has been legal in the United States since the 1989 Supreme Court case Texas v. Johnson, in which the Court ruled 5–4 that desecrating the American flag is protected symbolic speech under the First Amendment. The case stemmed from the arrest of Gregory Lee Johnson, a political activist who burned an American flag outside the Republican National Convention in Dallas as a protest against Ronald Reagan’s policies.
In his majority opinion, Justice William Brennan wrote that “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.”
The ruling invalidated flag protection laws in 48 of the 50 U.S. states and marked a major victory for civil libertarians and free speech advocates. Subsequent efforts to pass a constitutional amendment banning flag desecration have failed repeatedly, despite periodic surges of political interest.
Legal scholars have widely regarded Texas v. Johnson as one of the Court’s most definitive statements on symbolic speech. Until now, that precedent has largely remained unchallenged by federal law.
But President Trump’s order appears designed to test the constitutional limits of executive authority, particularly in cases involving expressive conduct deemed unpatriotic or inflammatory. While the executive order does not explicitly overturn the Supreme Court ruling—it cannot, by law—it attempts to circumvent it by directing prosecutors to use existing criminal codes creatively, and to redefine flag burning in terms of public safety and environmental harm rather than free speech.
The Executive Order
The full text of the executive order has not yet been released publicly, but according to statements from White House officials, it includes three core directives:
- Mandating Criminal Charges – Federal prosecutors are instructed to pursue criminal charges against individuals caught burning American flags, particularly during protests or acts of civil unrest.
- Expanding Legal Grounds for Prosecution – Attorney General Pam Bondi is tasked with re-examining previous incidents of flag burning to determine whether suspects could be charged under other legal grounds, including disturbing the peace, incitement, or violations of environmental regulations.
- Cooperation with Local Law Enforcement – The Justice Department will collaborate with state and local police to identify individuals involved in flag desecration and ensure they face legal consequences at every jurisdictional level possible.
While no sentencing guidelines are outlined in the order itself, Trump made it clear during his announcement that he envisions jail time for those who violate the directive. “If you burn a flag, you get one year in jail,” the President stated bluntly.
Whether such a penalty could be upheld in court remains unclear.
A Long-Standing Crusade
Trump’s desire to criminalise flag burning dates back to his first term. In November 2016, just weeks after winning the presidential election, Trump tweeted: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
At the time, his comments were met with swift condemnation from civil rights groups and legal experts, who pointed to Texas v. Johnson and reaffirmed that citizenship cannot legally be revoked for exercising constitutional rights. But the sentiment struck a chord with a segment of the American public—and with Trump himself, who returned to the issue multiple times over the following years.
During campaign rallies, Trump often invoked flag burning as symbolic of a broader moral decline in America, using it as a rhetorical weapon against what he described as radical left-wing activists. In 2020, he floated the idea of a constitutional amendment to ban flag desecration, though it never gained serious traction in Congress.
Now, as he reasserts his authority in a second term marked by unapologetic executive action, Trump appears determined to enforce the sentiment he first expressed nearly a decade ago.
Divided Public Opinion
According to a 2023 YouGov survey, 59% of Americans consider flag burning during protests to be “unacceptable.” The number rises significantly among older demographics and conservative voters. Among those aged 65 and over, nearly 75% expressed support for criminal penalties, while just 28% of respondents aged 18–24 agreed.
However, when asked whether such actions should be outlawed, support was less robust. Only 45% of respondents said they would support a federal law banning flag burning outright, with 36% opposing such a law and 19% undecided.
The disparity highlights the complexity of public sentiment: while many Americans find flag burning distasteful, a significant portion remain wary of laws that would criminalise symbolic speech—especially given its potential implications for broader First Amendment rights.
Legal Challenges on the Horizon
Constitutional experts say Trump’s executive order is likely to be challenged in federal court, possibly within days.
“This is a direct confrontation with long-standing constitutional precedent,” said Professor Laurence Tribe, a constitutional law scholar at Harvard Law School. “The Supreme Court was crystal clear in 1989: burning the American flag is protected speech. No executive order can nullify that. What this order does is invite legal chaos.”
Civil rights groups, including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation, have already signalled plans to file lawsuits challenging the order’s legality.
“The First Amendment doesn’t protect speech we like—it protects speech that offends,” said Anthony Romero, Executive Director of the ACLU. “This executive order is unconstitutional on its face and will be defeated in court.”
The Justice Department has yet to comment on how it intends to implement the directive, or whether Attorney General Bondi plans to challenge the 1989 precedent as part of a broader legal strategy.
Trump’s Justification
In signing the order on Monday, President Trump defended the measure as an act of patriotism and national unity.
“All over the country they’re burning flags,” he said. “All over the world they burn the American flag, and as you know, through a very sad court—a 5-4 decision—they called it freedom of speech.”
He added: “You can say whatever you want about our country. You can protest. But when you destroy our most sacred symbol, there must be consequences.”
Trump offered no comment on whether he believed the order would survive judicial review, but emphasised that the act of flag desecration “goes beyond speech” and enters the realm of “national disgrace.”
He did not take questions from the press following the signing.
Political Reactions
The order has sparked immediate and heated responses from across the political spectrum.
House Speaker Hakeem Jeffries condemned the move in a statement, calling it “an authoritarian attack on the most fundamental American value—freedom of expression.” He accused Trump of “governing through fear and spectacle” and urged the courts to strike the order down.
Senator Josh Hawley, however, praised the decision. “The American flag is not a prop—it is a sacred emblem of our freedom,” he said. “I applaud President Trump for taking action where Congress has failed.”
Democratic presidential hopeful Gavin Newsom called the order “flagrantly unconstitutional” and vowed to repeal it if elected.
Even some moderate Republicans expressed concern. Senator Susan Collins of Maine said she supports efforts to protect national symbols but added, “We must tread carefully when the First Amendment is at stake.”
The Road Ahead
The executive order criminalising flag burning now sets the stage for what could become a major constitutional showdown between the Trump administration and the federal judiciary. If legal challenges proceed swiftly, a district court could issue an injunction within weeks, potentially halting enforcement of the order before any arrests are made.
Alternatively, if prosecutors begin charging individuals under the new directive, those cases are expected to wind their way up through the court system, with Texas v. Johnson looming as the decisive legal hurdle.
For now, the administration has sent a clear message: Trump is willing to stretch the limits of executive power in pursuit of what he sees as a mandate to restore traditional American values.
Whether the courts—and the Constitution—will allow him to do so remains to be seen.