President Donald Trump's new executive order on flag burning has drawn criticism not only from opponents but also from some of his most prominent conservative allies.
The order, signed Monday, directs the Justice Department to prosecute individuals who desecrate the American flag when the act coincides with other crimes, including hate crimes, violent conduct, or property destruction.
It also allows federal agencies to take action against foreign nationals involved in such acts, including visa denial or removal proceedings. At the signing ceremony, Trump said, "You burn a flag, you get one year in jail... and you will see flag burning stopping immediately."
The White House framed the measure as a defense of national unity and security, arguing that flag desecration is "uniquely offensive and provocative" and can be used to "incite violence and riot."
However, conservative commentators noted that the Supreme Court has twice ruled that burning the flag is protected speech under the First Amendment, with late Justice Antonin Scalia, a conservative icon, siding with the majority in both cases despite personally disapproving of the conduct.
The irony didn't go unnoticed by Scalia's own son, Christopher, who used his X account to recall his father's defense of the First Amendment when it came to flag burning:
“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… https://t.co/J8Dv6JKZ0v
— Christopher J. Scalia (@cjscalia) August 25, 2025
Other conservative voices who often support Trump openly rejected the measure. "This is actually not brilliant," wrote Erick Erickson, a Christian broadcaster and self-proclaimed "conservative truth-teller," adding that "it is unfortunately well-settled constitutional law that burning the flag is a matter of free speech, and the executive does not get to create crimes."
This is actually not brilliant. While I agree with the sentiment, it is unfortunately well settled constitutional law that burning the flag is a matter of free speech and the executive does not get to create crimes. https://t.co/1X0FNIfXr8
— Erick Erickson (@EWErickson) August 25, 2025
Jesse Kelly, a right-wing commentator, said on X that even though she "would never in a million years harm the American flag," she still disagreed with the decision. "A president telling me I can't has me as close as I'll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage."
I would never in a million years harm the American flag.
— Jesse Kelly (@JesseKellyDC) August 25, 2025
But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire.
I am a free American citizen. And if I ever feel like torching one, I will.
This is garbage. https://t.co/hzNdGJLXfm
Dana Loesch, a former NRA spokesperson and current radio host, echoed the sentiment by saing that, "flag burning is vile, but the government has no right to control speech or expression."
Flag burning is vile but the government has no right to control speech or expression. https://t.co/xgtVwpPNKt
— Dana Loesch (@DLoesch) August 25, 2025
Fox News senior political analyst Brit Hume took a similar stance, pointing to the established legal precedent. "There is no escaping the fact that the Supreme Court has ruled flag burning protected speech," he said. "An executive order cannot change that."
George HW Bush ran against flag burning in 1988 and spent a whole week campaigning on the issue. But he called for a constitutional amendment to ban the practice. He didn't pretend he could ban it by an executive order that flies in the face of constitutional speech protections.… https://t.co/YhwsdLfPP7
— Brit Hume (@brithume) August 25, 2025
Casey Mattox, a conservative constitutional lawyer and free speech advocate, warned that the order sets a troubling precedent: "The First Amendment doesn't just protect speech we like. If we allow government to punish unpopular expression here, we open the door to broader suppression tomorrow."
If you see that Joe Biden's DOJ did not prosecute people for crimes - theft, destruction of property, etc. - to the full extent of the law BECAUSE they were burning the flag, you'd sensibly want to change that course. Doing so through an EO titled "Prosecuting Burning of the…
— Casey Mattox (@CaseyMattox_) August 26, 2025
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