A long-standing constitutional debate has been reignited as President Donald Trump, on Monday, signed an executive order directing the Justice Department to investigate and prosecute people who burn the American flag.
The move is a direct challenge to decades of established Supreme Court precedent, which has consistently ruled that flag burning is a form of symbolic speech protected by the First Amendment.
American flag burning impacted by Supreme Court decisions
The executive order acknowledges the Supreme Court’s landmark 1989 decision in Texas v. Johnson, where the court ruled 5-4 that burning the U.S. flag was a legitimate form of political expression.
It also references the subsequent 1990 case, United States v. Eichman, which struck down a federal law intended to circumvent the Johnson ruling. However, the order attempts to carve out an exception. It argues that prosecutions are permissible if flag-burning is “likely to incite imminent lawless action” or amounts to “fighting words.”
Trump said Monday that burning the U.S. flag “incites riots at levels we’ve never seen before.” He argued it has some people “going crazy” over burning it and others expressing anger at people for burning it. He did not offer examples.
Trump said the penalty for flag-burning would be one year incarcerated without an opportunity for early release, reports ABC News.
Legal scholars and advocates question legality
Legal scholars and civil liberties advocates have been quick to question the legality and merit of the order.
As the Foundation for Individual Rights and Expression (FIRE) pointed out, while an individual can be prosecuted for setting a fire in an area where it’s not permitted, the government cannot prosecute the protected expressive activity itself, even if many people find it offensive.
The Supreme Court has already addressed and rejected the argument that flag burning incites violence. It stated that the government cannot prohibit the expression of an idea simply because society finds it disagreeable.
The new order instructs Attorney General Pam Bondi to pursue litigation to challenge the 1989 ruling. It also aims to bring the issue back before the Supreme Court.
The current composition of the court, which includes three justices appointed by Trump during his first term, is seen by some as a key factor in this decision, with the hope that a more conservative court would be willing to overturn the existing precedent.
Trump says previous Supreme Court ruling was “very sad”
Trump said the court that ruled that flag burning is constitutionally protected was a “very sad court.”
For years, Trump has publicly expressed his belief that flag-burning should be a criminal offense. It’s a position that resonates with many Americans who view the flag as a sacred symbol of unity and sacrifice. The executive order reflects this sentiment, describing flag desecration as “uniquely offensive and provocative” and a “statement of contempt, hostility, and violence against our Nation.”
The move highlights the enduring tension between respecting a cherished national symbol and upholding the constitutional right to free expression, even when that expression is deeply unpopular.
We’re covering how Trump’s push to criminalize flag burning defies Supreme Court precedent and threatens free expression. Independent journalism is essential to defend constitutional rights and hold power accountable.
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