WASHINGTON — President Trump on Monday signed an executive order that seeks to ban burning the American flag, even though the Supreme Court has long ruled that it is protected under the First Amendment.
“If you burn a flag, you get one year in jail — no early exits, no nothing,” Trump said as he signed the order. He predicted the rule would immediately stop people from setting flags on fire, comparing it to an earlier order he issued in his first term to protect national monuments.
The order directs the Justice Department to investigate and prosecute cases of flag burning “where prosecution wouldn’t fall afoul of the First Amendment,” according to White House staff secretary Will Scharf. Attorney General Pam Bondi has been instructed to “vigorously prosecute” cases tied to crimes like hate crimes, violent acts, or conspiracies involving flag burning.
It also allows top officials, including Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem, to revoke visas, green cards, or citizenship proceedings for foreign nationals caught burning U.S. flags.
Legal History of Flag Burning
Flag burning has been one of the most controversial free-speech issues in U.S. history. In 1989, the Supreme Court ruled in Texas v. Johnson that burning the American flag counts as symbolic speech and is protected by the Constitution. The following year, the court struck down the Flag Protection Act of 1989 in U.S. v. Eichman.
Even the late conservative Justice Antonin Scalia, who personally disliked flag burning, sided with the majority. In 2015, he admitted: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
Trump and His Supporters Push Back
Trump, who has long said he believes flag burning should be punished, blasted the Supreme Court decisions as a “very sad court” ruling that wrongly called it free speech. “When you burn the American flag, it incites riots,” Trump argued.
Some Republicans quickly backed him. Senator Cynthia Lummis of Wyoming praised the executive order, saying, “It deserves nothing less than our highest respect. I urge Democrats and left-wing protesters to stop this grotesque and offensive American flag burning.”
Critics Say It’s Unconstitutional
Free-speech advocates quickly criticized Trump’s move. Bob Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, said the government cannot criminalize flag burning just because people find it offensive.
“You don’t have to like flag burning,” he said. “You can condemn it, debate it, or raise your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.”
👉 In short: Trump has signed an order aiming to punish people who burn the American flag, but decades of Supreme Court rulings say it’s protected as free speech. The order is likely to face major legal challenges.