Trump Administration’s Push to Prosecute Flag Burning: A Clash of Free Speech and Cultural Values

On August 25, 2025, President Donald Trump signed an executive order directing the Department of Justice to prioritize prosecuting individuals who burn the American flag, claiming such acts incite riots and violence.

The order instructs Attorney General Pam Bondi to pursue charges for related offenses—like violent crimes, hate crimes, or property damage—while arguing that flag burning, when likely to provoke “imminent lawless action” or constituting “fighting words,” falls outside First Amendment protections.

This move reignites a decades-old debate, pitting constitutional free speech guarantees against cultural reverence for the flag, while raising questions about the state of American governance and the right to dissent in a nation founded on rebellion.

While flag burning is deeply offensive to many, it’s critical to examine the legal, cultural, and historical dimensions of this issue—without advocating for violence, which remains unlawful and counterproductive.

A First Amendment Violation

The Supreme Court settled the question of flag burning’s legality in its landmark 1989 decision, Texas v. Johnson. In a 5-4 ruling, the Court declared that burning the American flag as a form of political protest is protected speech under the First Amendment. Justice William Brennan, writing for the majority, emphasized that the government cannot prohibit expressive conduct simply because it offends societal sensibilities.

“If there is a bedrock principle underlying the First Amendment,” Brennan wrote, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Court explicitly rejected the argument that flag burning inherently incites violence, noting that the act must be evaluated in context and that Gregory Lee Johnson’s protest during the 1984 Republican National Convention did not provoke imminent lawless action. A year later, in United States v. Eichman (1990), the Court reaffirmed this stance, striking down a congressional attempt to criminalize flag burning.

Trump’s executive order acknowledges these precedents but seeks to circumvent them by targeting flag burning when it coincides with other crimes, such as disorderly conduct or property damage. It also calls for litigation to “clarify the scope of First Amendment exceptions,” a move legal experts like Bob Corn-Revere of the Foundation for Individual Rights and Expression (FIRE) argue is futile.

“The government can’t prosecute protected expressive activity—even if many Americans, including the president, find it ‘uniquely offensive and provocative,’” Corn-Revere stated. The order’s claim that flag burning “incites riots at levels we’ve never seen before” lacks evidence, as the 1989 ruling dismissed similar assertions. G.S. Hans, a First Amendment scholar at Cornell University, called the order “a solution in search of a problem,” noting no epidemic of flag burning exists. Any attempt to prosecute flag burning as incitement would face immediate legal challenges, likely failing under the strict scrutiny applied to First Amendment cases.

Cultural Opposition and American Fundamentals

Culturally, the American flag holds profound significance as a symbol of national unity, sacrifice, and shared values. For many, its desecration feels like an attack on the principles of liberty and security that define the nation. This sentiment is not new: in 2006, a Senate proposal to ban flag burning via constitutional amendment fell just one vote short, reflecting widespread public disapproval of the act. Even figures like then-Vice President Kamala Harris condemned flag burning in 2024, stating it “should never be desecrated in that way.” Trump’s order taps into this visceral reaction, framing flag burning as “a statement of contempt, hostility, and violence against our Nation.”

Yet, the flag’s symbolic power cuts both ways. For protesters, burning it is a provocative act of dissent, often tied to grievances against government policies—be it military interventions, economic mismanagement, or social injustices. The act’s roots trace back to the Vietnam War era, when it became a potent symbol of resistance to perceived governmental overreach.

The Supreme Court recognized this in 1989, with Justice Brennan noting that tolerating such criticism strengthens, rather than weakens, the flag’s meaning. Even conservative Justice Antonin Scalia, a Trump-admired figure, supported the ruling, stating in 2012, “We have a First Amendment, which says that the right of free speech shall not be abridged—and it is addressed in particular to speech critical of the government.”

Rebellion, Tyranny, and the American Spirit

America’s founding was an act of rebellion against tyranny, with colonists rejecting a government they viewed as oppressive. This revolutionary spirit is woven into the nation’s fabric, embodied in the First Amendment’s protection of dissent. However, Trump’s order reflects a broader tension: the claim that flag burning undermines national unity comes at a time when many Americans feel the nation has been co-opted by forces prioritizing endless wars and economic policies that erode prosperity.

Critics argue that unchecked government spending and interventions abroad have fueled inflation and instability, alienating citizens who see flag burning as a cry against systemic failures. While these grievances resonate, any response must remain nonviolent, as inciting or engaging in violence is unlawful and undermines the very freedoms dissent seeks to protect.

The executive order’s focus on prosecuting flag burners, especially foreign nationals through visa revocations or deportation, raises further concerns about selective enforcement. Legal scholars warn that targeting specific viewpoints—such as anti-government or anti-war protests—violates the First Amendment’s requirement for content-neutral laws. The order’s emphasis on “harm unrelated to expression” may be a workaround, but courts are likely to scrutinize whether such prosecutions mask an intent to suppress dissent.

A Divisive Path Forward

Trump’s order is less a legal maneuver than a cultural and political statement, appealing to those who see flag burning as an affront to American values. Yet, it risks chilling free speech by signaling aggressive enforcement against a protected act. Hours after the order’s signing, a combat veteran was arrested near the White House for burning a flag in protest, underscoring the immediate tensions. He declared, “I fought for every single one of your rights to express yourself… It is a First Amendment right to burn the American flag.”

The debate over flag burning encapsulates a deeper struggle: balancing reverence for national symbols with the right to challenge a government perceived as straying from its founding ideals. While the act offends many, the Constitution protects it as a form of rebellion against tyranny—a principle at the heart of America’s origin. Trump’s order may rally his base, but it treads a dangerous line, threatening the very freedoms the flag represents. As this issue heads toward inevitable court battles, the nation must grapple with whether it will honor its revolutionary roots or seek to silence them.