WASHINGTON — President Donald Trump signed an executive order Monday directing federal prosecutors to pursue criminal charges against individuals who burn the American flag, setting up a likely clash with the U.S. Supreme Court’s long-standing interpretation of such acts as protected free speech.
The order instructs the Department of Justice to consider alternate legal avenues to penalize flag burning, such as charging demonstrators under public disturbance, vandalism, or environmental protection laws. Trump announced the move during a White House briefing, framing it as a matter of patriotism and public order.
“The American flag is sacred. Anyone who burns it shows contempt for our nation, and we will not allow that,” Trump said from the Oval Office.
Legal Precedent in Question
The Supreme Court has consistently ruled that flag burning is a form of constitutionally protected free speech. In Texas v. Johnson (1989), the Court struck down state laws criminalizing the practice, ruling 5-4 that symbolic acts of political protest fall under First Amendment protections.
A year later, in United States v. Eichman, the Court reaffirmed its decision, invalidating a federal flag protection statute. The rulings remain binding precedent.
The American Civil Liberties Union (ACLU) has already signaled it will challenge the order, arguing that any prosecution based on flag desecration violates constitutional rights.
DOJ and Enforcement Questions
Attorney General Pam Bondi has been tasked with reviewing how the directive can be enforced without directly contravening Supreme Court precedent. Legal experts suggest prosecutors may instead rely on secondary statutes, such as those governing public safety violations, environmental hazards from burning materials, or unlawful assembly.
Still, constitutional law scholars say such measures may face swift legal challenges. “This is an effort to repackage flag burning prosecutions under different labels, but the intent is clear, and courts will likely see through it,” said Erwin Chemerinsky, dean of UC Berkeley School of Law.
Political and Public Reaction
The move comes at a politically charged moment, as Trump continues to frame his second administration around themes of law, order, and nationalism. Supporters praised the order, with several Republican lawmakers calling it “long overdue.”
Opponents, however, said the order is an attempt to erode civil liberties. House Minority Leader Hakeem Jeffries (D-N.Y.) condemned the directive, saying Trump is “using patriotism as a weapon to silence dissent.”
Public opinion on the issue remains divided. A 2016 Gallup poll found that while a majority of Americans personally disapprove of flag burning, most still agree it should be protected under free speech.
Potential Court Battle Ahead
If prosecutions occur under the new directive, they could trigger a new test case before the Supreme Court. With Trump having appointed three justices during his first term, some legal analysts believe the Court’s balance could tilt in favor of upholding restrictions on flag burning.
Civil rights groups, however, warn that such a ruling would represent a dramatic narrowing of First Amendment protections.
“This is not about respecting the flag—it’s about silencing protest,” said Anthony Romero, executive director of the ACLU.
For now, Trump’s executive order sets the stage for what could become a defining legal and political fight of his presidency.