PROSECUTING BURNING OF THE AMERICAN FLAG
Section 1. Purpose. Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.
Notwithstanding the Supreme Court’s rulings on First Amendment protections, 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. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.
Sec. 2. Measures to Combat Desecration of the American Flag. (a) The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.
(b) In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.
(c) To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.
(d) The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.
Sec. 3. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The costs for publication of this order shall be borne by the Department of Justice.
DONALD J. TRUMP
THE WHITE HOUSE,
August 25, 2025.
Flag burning has a long history in the U.S. — and legal protections from the Supreme Court
President Trump has long opposed flag burning as a form of protest, and now he's directing the Justice Department to prioritize prosecutions of people who set the American flag on fire.
On Monday, Trump signed an executive order instructing the attorney general to pursue cases against people who "incite violence or otherwise violate our laws while desecrating this symbol of our country."
When Trump signed the order, he said that there are a slew of ways people can protest the government. "But when you burn the American flag, it incites riots at levels that we've never seen before. People go crazy," he said.
Free speech attorneys note that the Supreme Court has ruled on multiple occasions that flag burning is protected by the First Amendment and say Trump's effort runs afoul of settled law.
David Cole, a professor at Georgetown Law who has represented flag burners in several high-profile cases, said people can legally use the American flag as they see fit.
"It can be used to wave it to express support for the government. It can be used to burn it to express opposition to the government," Cole said. "But what is most important is that the government doesn't get to tell us how we should use symbols and speech. We get to make those decisions."
American flag desecration dates back to the Civil War
Incidents involving the desecration of the American flag date back at least as far as the Civil War, according to Jonathan White, a professor of American Studies at Christopher Newport University.
"Some of it was Union soldiers who were really angry about the direction the war was going, and they might curse at the flag or say something negative about it," White said. "I also found women and young girls who were court martialed — tried before military courts — for desecrating the flag in some cases."
In the late 19th century, some U.S. states began passing laws blocking people from desecrating the flag, which led to a series of prosecutions of anti-war protesters during World War I, according to White.
During the Vietnam War, there was a resurgence in flag burning as critics blasted the U.S. government's ongoing involvement in the conflict. Congress passed the Flag Protection Act of 1968, and by 1989 there were 48 states with laws that in some way restricted the desecration of the American flag.
The Supreme Court case that protected flag burning
That same year, the Supreme Court heard the case of a man named Gregory Lee Johnson, who had been arrested five years earlier for burning an American flag at the Republican National Convention in Dallas to protest the actions of Ronald Reagan's administration. Found guilty of violating Texas law, Johnson was sentenced to one year in jail and fined $2,000.
But his appeals took him to the Supreme Court, which ruled in a 5-4 decision that burning of the American flag was a form of protected speech under the First Amendment.
"If there is a bedrock principle underlying the First Amendment," Justice William Brennan wrote in the majority opinion for Texas v. Johnson, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Notably, the ruling didn't divide the court neatly along ideological lines. In fact, one of the other justices in the majority was conservative icon Antonin Scalia. (In a post on X Tuesday, Vice President JD Vance called Scalia a "great Supreme Court Justice" but said "Texas v. Johnson was wrong.")
Congress attempted to ban flag burning at the national level that year, but the Supreme Court ruled again, in 1990, that it constituted free speech and struck down the law.
Trump's order nods to the free speech protections
Though Trump's executive order acknowledges the free speech rights associated with flag burning, it also says the Supreme Court has never held that flag burning is constitutionally protected if it's done in a way "likely to incite imminent lawless action or that is an action amounting to fighting words.' "
But Brian Hauss, an attorney with the American Civil Liberties Union, said the vast majority of people who burn flags aren't attempting to incite violence and suggested the Trump administration is looking for an excuse to take such cases to court.
"If somebody is burning a flag in protest and they're not telling people to go engage in violence, the government can't look at that any say, 'Oh, well, that could have the effect of causing violence to stir up so therefore we get to prosecute,'" he said.
Flag burning can be prosecuted when it violates what's known as a "content-neutral" law, such as an ordinance that prohibits outdoor fires in a certain area, the attorneys said. (A man who burned a flag outside the White House on Monday in protest of Trump's executive order was arrested by the U.S. Park Police for violating a statute barring fires in public parks, NBC News reported.)
But Cole, who was one of the attorneys for Gregory Lee Johnson in the 1989 case, said the Trump administration appears to be planning to selectively prosecute people who burn the flag.
"This executive order, by singling out flag burning and singling it out because the president finds its message offensive," Cole said, "will be Exhibit A [for] anyone who is in fact prosecuted under these content-neutral laws, arguing, 'Look, the reason they went after me was not the mere fact that I was burning something but the specific fact that I was burning the flag."
Cole also said the provision of the executive order threatening to deny or revoke visas and other immigration benefits to non-citizens who burn flags fails to recognize that the First Amendment protects everyone in the U.S.
"Just as you cannot throw someone in jail for burning an American flag, you can't deport someone for burning an American flag," he said. "So, at the end of the day, this executive order is symbolism and theater. It is not a realistic attempt to respond to any real world problem."
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