Incitement or Expression? Trump’s Push to Criminalize Flag Burning Meets Constitutional Roadblocks

On August 25, 2025, President Donald Trump issued a sweeping executive order aimed at prosecuting individuals who burn the American flag—a move framed as necessary to prevent violence and uphold national dignity. Yet this attempt sharply diverges from established constitutional doctrine, especially the Supreme Court’s landmark rulings protecting flag burning as symbolic political speech. 1. What Trump’s Executive Order Mandates In a signing ceremony at the White House, Trump announced that “You burn a flag, you get one year in jail,” highlighting the act as a threat to public order and safety AP News The Daily Beast . The order directs the Justice Department to investigate and prosecute flag-burning incidents—circumstances where flag desecration reportedly “may incite violence and riot” AP News The White House ABC News . Critically, the order stipulates enforcement only when flag-burning violates content-neutral laws such as open burning restrictions, disorderly conduct statutes, or property damage regulations The White House AP News . It also empowers Attorney General Pam Bondi to challenge the 1989 Supreme Court ruling—Texas v. Johnson—and attempt to revisit its protections under the more conservative court currently seated AP News The White House The Washington Post . In a notable expansion, the directive includes immigration consequences: foreign nationals implicated in flag desecration may face visa revocations, denial of residency, or deportation The Daily Beast The White House . 2. The Supreme Court’s Protection of Flag Burning Contrary to Trump's framing, the Supreme Court has maintained clear protection for flag desecration under the First Amendment. In Texas v. Johnson (1989), the Court ruled 5–4 that burning the American flag during protest constitutes symbolic speech—and is thus constitutionally protected—even if offensive to many Wikipedia ABC News AP News . Justice William Brennan, writing for the majority and joined by Justice Antonin Scalia (whom Trump admires), rejected the notion that such expressive conduct qualifies as “fighting words” or is likely to provoke imminent violence ABC News The Washington Post Wikipedia . Further reinforcing this protection, the Court struck down the federal Flag Protection Act in United States v. Eichman (1990), reaffirming that symbolic speech—even when contemptuous—cannot be suppressed in the name of national pride Wikipedia +1 . 3. The Legal Tensions: Incitement and “Fighting Words” Trump's order attempts to circumvent constitutional protections by invoking exceptions such as “imminent lawless action” and “fighting words.” According to the Brandenburg v. Ohio (1969) standard, however, speech can only be lawfully restricted if it is intended to and likely to produce imminent unlawful conduct Wikipedia . The Supreme Court in Texas v. Johnson explicitly dismissed these exceptions in the context of flag burning: the act did not constitute fighting words or incitement under First Amendment jurisprudence ABC News Wikipedia . 4. Constitutional Scholars and Civil Liberties Response Civil liberties groups immediately condemned the order. Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression (FIRE), emphasized: “While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity—even if many Americans, including the president, find it ‘uniquely offensive and provocative.’” AP News TIME This sentiment echoed across mainstream media: legal experts suggested that prosecuting flag burning under these terms would struggle to withstand judicial scrutiny TIME ABC News . Washington Post commentary also highlighted the irony that Trump’s move conflicts with the stance of Justice Scalia, who authored the majority opinion in Texas v. Johnson—but upheld free expression over patriotism The Washington Post . Moreover, G.S. Hans, a Cornell law professor, noted that flag burning is not a widespread societal issue and questioned whether the order was a “solution in search of a problem” AP News The Daily Beast . 5. Broader Implications and Political Context This executive order advances Trump’s broader pattern of symbolic policy moves. By equating flag burning to violence and public disorder, he taps into patriotic sentiments to justify expanded federal authority—and even seine immigration consequences for foreign nationals The Daily Beast AP News . But critics argue that conflating symbolic protest with violent threat undermines constitutional safeguards designed to protect dissent. A constitutional amendment, not executive fiat, is the proper avenue—though even that is fraught with political and legal hurdles AP News TIME . Conclusion President Trump’s August 25 executive order marks a bold attempt to criminalize flag burning, citing incitement and disrespect as justification. However, it runs headlong into the bedrock First Amendment protections affirmed by the Supreme Court in Texas v. Johnson (1989) and United States v. Eichman (1990). Critics warn the order may be constitutionally vulnerable and politically motivated, while supporters frame it as a necessary defense of national symbols. With litigation likely on the horizon, this clash between executive action and constitutional free speech doctrine underscores the enduring tension between patriotism and protest in American democracy.

Incitement or Expression? Trump’s Push to Criminalize Flag Burning Meets Constitutional Roadblocks

Asel Soliman

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