Trump mandates flag burners face prosecution in one of biggest challenges to the First Amendment in decades
More than 30 years after the U.S. Supreme Court ruled that flag burning is protected under the First Amendment, former President Donald Trump is pushing to criminalize the act once again.
On Monday, Trump signed an executive order instructing the Department of Justice and other federal agencies to “vigorously prosecute” individuals who burn or desecrate the American flag. The order also calls on federal prosecutors to seek opportunities to challenge and potentially overturn the 1989 Supreme Court decision in Texas v. Johnson, which struck down laws punishing flag desecration.
At the signing ceremony in the Oval Office, White House Staff Secretary Will Scharf said the order directs the DOJ to investigate instances of flag burning and pursue cases that do not violate First Amendment protections. Despite that qualification, Trump declared that the executive action effectively criminalizes flag desecration, stating: “You burn a flag, you get one year in jail… and you will see flag burning stopping immediately.”
This stance contradicts the Supreme Court’s landmark 5-4 decision in Texas v. Johnson, where Justice William Brennan wrote that symbolic speech, including flag burning, is protected under the Constitution. Justice Anthony Kennedy, in a concurring opinion, acknowledged the discomfort the decision caused but emphasized the need to uphold constitutional rights, stating: “The flag protects those who hold it in contempt.”
Trump’s order also authorizes federal prosecutors to pursue other charges when flag desecration occurs and urges state and local prosecutors to take up such cases—even though similar laws have already been ruled unconstitutional. Additionally, the order directs Secretary of State Marco Rubio to deny or revoke visas, residency, or citizenship to foreign nationals who desecrate the American flag.
Trump has long criticized flag burning, calling for a constitutional amendment to criminalize the act. In 2024, during an appearance on Fox & Friends, he stated: “You should get a one-year jail sentence if you do anything to desecrate the American flag.”
A White House fact sheet justified the order by calling the flag “the most sacred and cherished symbol” of the country and claimed that desecrating it is “uniquely offensive” and potentially dangerous. Trump echoed that sentiment, saying the act “incites riots” and threatens public safety.
The executive order marks a renewed challenge to constitutional free speech protections and could set the stage for a legal battle over one of the nation’s most controversial forms of protest.
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