On August 25, 2025, President Donald Trump signed an executive order titled “Prosecuting Burning of the American Flag,” aiming to punish individuals who burn the American flag, claiming such acts show hostility toward the United States and incite riots. This move has sparked debate, as flag burning has long been protected as free speech under the First Amendment. But what does the law say, and how does this order align with constitutional protections?
Trump’s Push to Criminalize Flag Burning
President Trump has consistently opposed flag burning. In 2016, he suggested on social media that flag burners should lose citizenship or face jail time. During a 2024 speech to the National Guard Association, he promised to pursue laws criminalizing the act. His recent executive order doesn’t directly criminalize flag burning but instructs the Justice Department to prosecute cases involving flag desecration that violate “content-neutral laws,” such as those related to violent crimes, hate crimes, or property damage, while still respecting First Amendment rights.
The order also targets foreign nationals who burn flags, directing officials to revoke their visas or residence permits. Trump claims flag burning incites riots and suggested a one-year prison sentence for those convicted, though the order itself doesn’t specify this penalty. In Oval Office remarks, he called flag burning a sign of disrespect that the public opposes, referencing the upcoming 250th anniversary of the U.S. in 2026 as a reason to protect the flag’s sanctity.
The First Amendment and Supreme Court Precedents
The legality of flag burning hinges on landmark Supreme Court rulings. In 1989, the Court decided Texas v. Johnson in a 5-4 ruling, declaring flag burning as protected expressive conduct under the First Amendment. Gregory Lee Johnson had burned a flag in 1984 to protest President Ronald Reagan’s policies, leading to his conviction under a Texas law. The Supreme Court overturned the conviction, with conservative Justice Antonin Scalia later explaining that flag burning expresses ideas, like opposition to the government, which the First Amendment protects.
In 1990, the Court reinforced this in United States v. Eichman, striking down the Flag Protection Act of 1989, which Congress passed to criminalize flag burning after Texas v. Johnson. The 5-4 ruling, again supported by Justices Scalia and William Brennan, emphasized that punishing flag desecration undermines the freedom the flag represents. These rulings establish that flag burning, as political expression, is protected unless it directly incites illegal activity or constitutes “fighting words.”
The Executive Order’s Approach
Trump’s order acknowledges these rulings but argues that flag burning causing “imminent lawless action” or amounting to “fighting words” may not be protected. Attorney General Pam Bondi insists the administration can prosecute flag burners without violating the First Amendment by focusing on associated crimes, like inciting riots. However, Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, argues that the president cannot override First Amendment protections. He notes that while burning anything in restricted areas can lead to prosecution, targeting flag burning as expression is unconstitutional.
State Laws and Proper Flag Disposal
While federal law aligns with the Supreme Court’s rulings, some states, like Indiana, have their own flag desecration laws. Indiana Code § 35-45-1-4 (2024) makes it a Class A misdemeanor to knowingly burn or deface a U.S. flag, though this doesn’t apply to proper flag disposal under federal guidelines (4 U.S.C. 8(k)). The American Legion and Veterans of Foreign Wars outline respectful flag retirement ceremonies, which involve burning worn-out flags after folding them properly, saluting, and saying the Pledge of Allegiance or observing silence. Local fire codes must be followed, and many government offices or veterans’ organizations offer flag disposal services.
Can Trump’s Order Change the Law?
The executive order seeks to test the boundaries of First Amendment exceptions, but legal experts argue it cannot override Supreme Court precedent. The order’s focus on prosecuting flag burning tied to other crimes may allow some enforcement, but directly punishing the act as expression remains unconstitutional. Trump’s push reflects his long-standing view, seen in his 2019 flag-hugging at CPAC and 2020 rally statements, but the courts have consistently prioritized free speech.
As the U.S. approaches its 250th anniversary, the debate over flag burning highlights the tension between national pride and constitutional freedoms. While Trump’s order aims to curb flag desecration, the First Amendment’s protections, as upheld by the Supreme Court, ensure that symbolic protests like flag burning remain a legal form of expression.