The Inherent Strangeness of Trump’s Executive Order on Flag-Burning

By Charles C. W. Cooke

Tuesday, August 26, 2025

 

President Trump intends to crack down on critics of the United States who burn the American flag. Or, at least, President Trump wants to give the impression that he harbors such an intention. Yesterday, at an event in the Oval Office, Trump signed an executive order designed “to restore respect and sanctity to the American Flag,” and expressed the view that “people that burn the American flag should go to jail for one year.” People “don’t want to see our American flag burned and spit on,” Trump averred, before contending that the Supreme Court’s twice-issued defense of the practice was “very sad.”

 

In my estimation, those two decisions — issued, back-to-back, in 1989 (Texas v. Johnson) and 1990 (United States v. Eichman) — were correctly decided. Reflecting on the matter in 2012, Justice Antonin Scalia explained that, while he personally loathed flag-burners, the First Amendment “guarantees the right to express contempt for the government, Congress, Supreme Court, even the nation or the nation’s flag,” and that, as a judge rather than a politician, he was obliged to uphold the law. This view was decidedly unpopular. Even now, 36 years after that precedent was set, polling shows that a majority of voters wish that it were a federal crime to burn an American flag. Within that majority are President Trump and Vice President Vance — both of whom have expressed the view that the Supreme Court got it wrong. Politically, the pair are on the right side of public opinion. Legally, they do not have a leg to stand on. Until it is repealed or altered, the First Amendment is still in force. Until a subsequent case limits or reverses its holding, Texas v. Johnson will define it in this realm.

 

This morning, Vice President Vance sought to reconcile the administration’s view with the Court’s by contending that Trump’s order “is consistent with Texas v. Johnson.” This claim is too clever by half. Certainly, the missive is full of caveats. It openly acknowledges “the Supreme Court’s rulings on First Amendment protections”; it points to exceptions to the rule that are already illegal under the First Amendment — and have always been illegal under the First Amendment; and it references “open burning restrictions, disorderly conduct laws, or destruction of property laws” — none of which are novel or controversial. In this respect, the document seems like a clever attempt to persuade Americans who are not paying attention that President Trump has done something that he has not. Its title is “Prosecuting Burning of the American Flag”; its conceit is that flag-burning represents an act of “contempt, hostility, and violence against our Nation”; and its central promises are that the executive branch will “prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country,” and the attorney general will “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Typically, presidents who push the constitutional envelope like to insist that they are doing no such thing. Here, that instinct has been reversed. By its own terms, Trump’s order is not, in fact, a wholesale rejection of Supreme Court precedent. His rhetoric, however, is clearly intended to make the public believe otherwise.

 

That is not illegal. If, for whatever reason, the president wishes to pretend that he is violating the Constitution when he is not, he may do so. But it is pretty weird to behold — and, more important, it ought to make the public at least a little suspicious of how his nebulous rules might be used by figures within the administration who hope to make a name for themselves. One passage from Trump’s order stands out in this respect: It vows that “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.” Read literally, this constructs a wall of separation between burning a flag as a viewpoint and burning a flag as an act. Or, to put it another way: Read literally, the provision implies that, under Trump’s order, Americans will not be prosecuted for burning a flag in protest but might well be prosecuted for violating the fire code. Which is fine — that distinction already serves as the backbone of the law — unless the only reason that the fire code violation is being considered in the first place is that the accused burned an American flag. Prosecuting a person for their acts instead of their opinions is reasonable. Prosecuting someone for their acts because of their opinions is not. Properly understood, the First Amendment is not solely a bulwark against the government regulation of one’s speech; it is a prophylactic against one’s speech being used as the determinant of whether one is deemed hostis humani generis. Twice, the Supreme Court has ruled that Americans may not be prosecuted for burning American flags. If the Trump administration’s response to that command is to start investigating those Americans instead, that decision will be rendered a dead letter.