President Trump Signs Executive Order to Prosecute Burning of American Flag

President Trump signed several executive orders on Monday morning, including one directing the Department of Justice (DOJ) to prosecute individuals who burn the American flag.

The Executive Order

The president, in a signing ceremony at the Oval Office of the White House, said those who burn flags are responsible for inciting riots.

“All over the country they’re burning flags,” President Trump said in his remarks. “What the penalty is going to be [is] if you burn a flag, you get one year in jail. No early exits … no nothing.”

“The people in this country don’t want to see our American flag burned and spit on. And by people that are, in many cases, paid agitators. They’re paid by the radical Left to do it,” the president added.

The executive order states that burning the American flag is “uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation. … Burning this representation of America may incite violence and riot.”

Nearly four decades ago, the U.S. Supreme Court held that flag burning is constitutionally protected speech. But the executive order states,

The Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected.

According to a fact sheet published by the White House, the order,

• Directs the Attorney General to vigorously prosecute those who violate our laws in ways that involve desecrating the flag, and to pursue litigation to clarify the scope of First Amendment in this area.
• Instructs the Attorney General to refer flag desecration cases that violate state or local laws to appropriate state or local authorities.
• Directs the Secretaries of State and Homeland Security and the Attorney General to deny, prohibit, terminate, or revoke visas, residence permits, or naturalization proceedings, and other immigration benefits, or seek removal from the United States, wherever there has been an appropriate determination that flag desecration by foreign nationals permits the exercise of those remedies under applicable law.

The directive comes after the American flag has been desecrated in recent months during anti-Israel protests and during the protests in Los Angeles over federal law enforcement officers’ arrest of illegal immigrants, Fox News reports.

The U.S. Supreme Court

In 1989, the U.S. Supreme Court issued a landmark decision in Texas v. Johnson, a narrow 5-4 ruling that burning the flag of the United States is protected free speech under the First Amendment of the Constitution.

“After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas Law,” liberal Justice William Brennan wrote for the Court’s majority. “This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.”

At the time of the ruling, it was a federal crime to burn the American flag, and 48 states had laws on the books prohibiting such an action.

Notably, conservative Justice Antonin Scalia joined with the court’s majority in the case. Reflecting upon the case in later years, Justice Scalia said in a speech in 2012,

You should be in no doubt that, patriotic conservative that I am, I detest the burning of the nation’s flag – and if I were king I would make it a crime.

But as I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.

To be fair, Justice Scalia’s decision bears the mark of a good justice – one who interprets the Constitution as he believes it is written, not as he prefers it to be.

Writing in dissent, Chief Justice William Rehnquist opined, “I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

Why It Matters

According to a 2025 Gallup poll, a record-low 58% of U.S. adults say they are “extremely” (41%) or “very” (17%) proud to be an American.

In a 1986 speech discussing what makes an American, the late Justice Scalia said, “Like an intricate tapestry, the fabric of our society is made up of many different threads that run in different directions, but all meet one another to form the whole.”

“What makes an American,” he added, “is not the name or the blood or even the place of birth, but the belief in the principles of freedom and equality that this country stands for.”

A healthy sense of pride and patriotism is an essential ingredient for a thriving nation. No nation can long endure – at least in any recognizable fashion – if its citizens forsake their laws, beliefs, history, customs, and traditions.

Under current Supreme Court precedent, flag burning may be constitutionally protected speech.

But can a country which permits its people to burn – and therefore, reject – the very symbol of the nation really be healthy and unified? Probably not.

Indeed, the very first words of the Constitution are “We the people.” By burning the American flag, an individual rejects the very document and nation which gives them the “right” to do so in the first place.

It remains to be seen how the president’s executive order will be enforced, and whether it sparks any legal challenges or calls for the Supreme Court to revisit its decision in Texas v. Johnson.

Related articles and resources:

31 Days of Prayer for America

A Hopeful View of America’s Future

Revolutionary Faith in the Birth of America

Learning to Love America Again

The Role of Faith in America’s Founding

Toward a More Perfect Union: The Moral and Cultural Case for Teaching the Great American Story