President Donald Trump is expected to sign an executive order today mandating prosecution for those who desecrate the American flag, including burning it, in a move that sets up a potential clash with decades-old Supreme Court precedent protecting such acts as free speech.
The order, exclusively obtained by Fox News, directs Attorney General Pam Bondi to prosecute individuals who violate existing laws “in ways that involve desecrating the flag” and to pursue litigation that would challenge current interpretations of First Amendment protections for flag burning.
“The American flag is the most sacred and cherished symbol of the United States of America, and desecrating it is uniquely and inherently offensive and provocative,” reads a fact sheet on the executive order seen by Fox News.
The directive comes after months of high-profile flag burning incidents during anti-Israel demonstrations and recent anti-ICE protests in Los Angeles, where demonstrators were filmed burning American flags whilst waving Mexican flags.
Legal Battleground Ahead
The order appears designed to circumvent the landmark 1989 Supreme Court ruling in Texas v. Johnson, which established flag burning as constitutionally protected symbolic speech. In that 5-4 decision, the Court struck down state laws criminalising flag desecration.
“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,” Justice William Brennan wrote for the majority.
Legal experts suggest the administration may attempt to prosecute flag burners under other statutes, such as public nuisance or disorderly conduct laws, rather than directly challenging the Supreme Court precedent.
Immigration Consequences
The executive order also directs the attorney general and secretary of homeland security to deny, terminate, or revoke visas and other immigration benefits for non-citizens involved in flag desecration “wherever there has been an appropriate determination that flag desecration by foreign nationals permits the exercise of those remedies under applicable law.
This provision appears to target foreign nationals participating in protests, particularly following incidents where anti-Israel demonstrators burned flags outside the Democratic National Convention in Chicago last August and during Israeli Prime Minister Benjamin Netanyahu’s congressional address in July 2024.
Recent Protest Flashpoints
The order follows several high-profile flag burning incidents that have drawn Trump’s ire. In June, anti-ICE protesters in Los Angeles were filmed spitting on and burning American flags during demonstrations against federal immigration raids.
“This is not just a gesture, this is something we need to make real. We need to take down this empire once and for all,” a protester was heard saying through a bullhorn as flames consumed the flag on a Los Angeles street.
During an appearance on a podcast hosted by New York Post columnist Miranda Devine, Trump stated: “I happen to think if you burn an American flag, because they were burning a lot of flags in Los Angeles, I think you go to jail for one year.
Uncertain Timeline
Initial reports suggested Trump would sign the order on Thursday, but CNN reported that White House officials later said the president was no longer expected to sign it that day. It remains unclear whether the order has been delayed or shelved entirely.
The confusion reflects the complex legal landscape surrounding flag desecration laws. NewsNation reported that administration officials were exploring ways to prosecute flag burning without directly violating Supreme Court precedent, potentially by focusing on circumstances surrounding incidents rather than the act itself.
Historical Context
The Supreme Court’s protection of flag burning as free speech has remained controversial for over three decades. Congress passed the Flag Protection Act in 1989 following the Johnson decision, but the Court struck that down as well in United States v. Eichman (1990).
Multiple attempts to amend the Constitution to ban flag desecration have failed, most recently in 2006 when a proposed amendment fell one vote short in the Senate.
Chief Justice William Rehnquist, dissenting in Texas v. Johnson, compared flag burning to “fighting words,” whilst Justice John Paul Stevens warned that allowing flag desecration would “tarnish its value.”
Even conservative Justice Antonin Scalia, who provided the deciding vote in Johnson, later acknowledged the tension between personal feelings and constitutional principles. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said at a 2015 event. “But I am not king.”
Patriotic Initiatives
The executive order follows other Trump administration efforts to promote patriotism, including banning State Department offices from flying any flag other than the American flag and personally funding the installation of two 88-foot-tall flags at the White House.
President Trump personally paid to install two big, beautiful American Flags to wave proudly over the White House for years to come,” White House spokesperson Davis Ingle told Fox News in July.
The administration’s focus on flag protection comes amid broader cultural debates about national symbols, including controversies over athletes kneeling during the national anthem that began with NFL player Colin Kaepernick in 2016 and expanded during 2020’s racial justice protests.
As the executive order awaits Trump’s signature, legal scholars anticipate immediate court challenges that could reignite decades-old debates about the balance between patriotic symbolism and constitutional freedoms.
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