More than three decades after the Supreme Court ruled the government cannot prohibit burning or desecrating an American flag because doing so would violate the U.S. Constitution, President Donald Trump is ordering prosecutors to prosecute anyone who does so, regardless of the First Amendment protection.
A White House official told The Independent that the president will on Monday sign an order directing the Department of Justice and other agencies to “vigorously prosecute” anyone who burns or desecrates the flag and to “pursue litigation” intended to have the high court overturn the 1989 case that prohibited punishing anyone for burning an American flag, Texas v Johnson.
During an Oval Office signing ceremony, White House Staff Secretary Will Scharf told Trump that the order “charges your department of justice with investigating instances of flag burning” and orders prosecutors to pursue cases “where prosecution wouldn't fall afoul of the First Amendment.”
But moments later, Trump said the order would have the effect of criminalizing flag burning despite Supreme Court precedent and claimed the penalty would be a year of incarceration.
“You burn a flag, you get one year in jail. You don't get 10 years. You don't get one month. You get one year in jail. And it goes on your record, and you will see flag burning stopping immediately,” he said.
That statement directly contradicts what the nation’s highest court said in that 5-4 decision, in which Justice William Brennan wrote that the First Amendment’s speech protections don’t just apply to written or spoken words, but to symbolic actions — including burning an American flag.
Writing in a separate concurrence, Justice Anthony Kennedy noted that the court was obligated to “make decisions we do not like” by finding it unconstitutional to punish burning the flag.
“The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt,” he added.
That decision, which was deeply unpopular at the time, stuck down laws in 48 states criminalizing flag desecration.
Nonetheless, Trump’s order states that people who burn flags should be prosecuted for other crimes when appropriate by federal prosecutors, while also directing the Attorney General to refer flag burning or desecration cases to state or local prosecutors — potentially for prosecution under laws already held unconstitutional by the Supreme Court.
The order further directs Secretary of State Marco Rubio to “deny, prohibit, terminate, or revoke visas, residence permits, or naturalization proceedings, and other immigration benefits, or seek removal from the United States” for any foreign national who desecrates a flag, the latest attempt by the Trump administration to curtail the free speech rights of noncitizens.
Trump has personally condemned protesters for burning the American flag in the past, and has even called for a constitutional amendment to scale back free speech protections in order to criminalize the practice, which emerged during the Vietnam War era as a popular form of protest against the U.S. invasion.
“You should get a one-year jail sentence if you do anything to desecrate the American flag,” Trump said in 2024 during an interview on Fox & Friends.
A White House fact sheet justified the order by calling the American flag “the most sacred and cherished symbol of the United States of America” and stating that burning or desecrating it is “uniquely and inherently offensive and provocative” and “a statement of contempt and hostility toward our Nation” as well as “an act used by groups of foreign nationals calculated to intimidate and threaten violence against Americans.”
Speaking in the Oval Office just before signing the order, Trump claimed it was necessary to save lives “because what happens when you burn a flag is the area goes crazy.”
“If you have hundreds of people, they go crazy. You could do other things. You can burn this piece of paper, you can and it's but when you burn the American flag, it incites riots at levels that we've never seen before,” he said.
Bob Corn-Revere, the chief counsel for the Foundation for Individual Rights and Expression, said in a statement that Trump doesn’t have the ability to “revise the First Amendment with the stroke of a pen” even if he might so desire.
Corn-Revere noted that the government can prosecute people for “burning anything in a place they aren’t allowed to set fires,” but not for “protected expressive activity” including burning a flag, “even if many Americans, including the president, find it ‘uniquely offensive and provocative.’”
“You don’t have to like flag burning. You can condemn it, debate it, or hoist 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,” he said.
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