[NYT] Despite Trump’s Tough Talk, Flag Burning Is Protected Speech

a good day for free speech, a bad day for fascism

https://www.nytimes.com/2025/08/25/us/politics/trump-flag-burning-executive-order.html

Despite Trump’s Tough Talk, Flag Burning Is Protected Speech
The president wants to prosecute protesters who desecrate the American flag, but his order concedes that such protests are typically covered by the First Amendment.
By Charlie Savage and Luke Broadwater
Reporting from Washington
Aug. 25, 2025

President Trump signed with a flourish on Monday an executive order directing the Justice Department to prosecute protesters who burn the American flag, “to the maximum extent permitted by the Constitution.” But the directive itself acknowledged how little that is.

Signing the order in the Oval Office, Mr. Trump delivered tough talk about punishing those who desecrate the national symbol: “If you burn a flag, you get one year in jail, no early exits, no nothing,” he declared.

But there was a significant disconnect between the president’s words and the order he signed. The text says nothing about putting people in prison for a year. Instead, it acknowledges that the Supreme Court in 1989 ruled that flag burning is a form of political expression protected by the First Amendment.

Mr. Trump’s order cited part of the court’s opinion suggesting that some flag-burnings may not be protected — actions that are likely to incite riots, for example. But that very section of the ruling made clear that flag burning to protest government policies was not the sort of incitement that could be prosecuted.

In his order, Mr. Trump instructed Attorney General Pam Bondi to look for ways to prosecute people who desecrate the national symbol “to the fullest extent permissible under any available legal authority” without running afoul of the First Amendment. The order offers some ideas: prosecuting “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights.”

The order also instructs administration officials to revoke visas and pursue deportation of noncitizens who burn American flags. That would raise similar First Amendment issues to those affecting the administration’s attempts to cancel visas and deport foreign students who protest Israel’s actions in the Gaza War, which are already under legal challenge.

The order adds that Ms. Bondi “may pursue litigation” to clarify what First Amendment exceptions apply to prosecuting flag burners. And it says if a flag burning incident might have violated local laws, such as against open fires, the federal government “shall refer the matter to the appropriate state or local authority for potential action.”

Robert Corn-Revere, the chief counsel for the Foundation for Individual Rights and Expression, said that the First Amendment protects flag burning as an expression of political dissent and that Mr. Trump does not have the power to change that.

“While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it ‘uniquely offensive and provocative,’” he said, quoting a line from Mr. Trump’s order.

Mr. Corn-Revere continued: “You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.”

Mr. Trump has long railed against Americans who burn the flag. He has backed the idea of passing a constitutional amendment to ban the practice. In late 2016, after he won the presidential election, he suggested that flag burners should be punished with jail time or loss of citizenship.

The 1989 Supreme Court case, Texas v. Johnson, involved a protester who had burned a flag outside the 1984 Republican National Convention in Dallas as part of a political demonstration against Reagan administration policies. The protester, Gregory Johnson, was convicted under a state law that criminalized desecrating the flag.

The Supreme Court ruled that Mr. Johnson’s act was symbolic speech protected by the Constitution — effectively striking down laws against flag desecration across the country. In response, Congress enacted a federal law against such desecration, but in 1990, the same five-justice majority struck it down, too.

The majority in both cases included then-Justice Antonin Scalia, a hero to legal conservatives. He later talked about the case as an example of constitutional principles compelling a result that conflicted with his personal views.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia once said. “But I am not king.”



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WaPo commentary

https://www.washingtonpost.com/opinions/2025/08/25/flag-burning-trump-scalia-first-amendment/

Opinion
Editorial Board
Donald Trump vs. Antonin Scalia
The president targets flag burning for the same reason the justice upheld its constitutionality.

August 25, 2025 at 5:54 p.m. EDT
Yesterday at 5:54 p.m. EDT

Donald Trump promised in 2016 to pick a Supreme Court justice “just like” Antonin Scalia. Scalia had died that year, and Trump’s victory was in part a referendum on the replacement of the court’s leading originalist.

Now the president is contesting one of Scalia’s most famous judicial positions with an executive order directing the Justice Department to find ways to prosecute people who burn the flag of the United States. Scalia was the swing vote in the 1989 case Texas v. Johnson, which held that flag-burning is a form of expression, no matter how odious, that is protected by the First Amendment.

“It was a five to four decision, and I made the fifth vote,” Scalia said in a 2012 speech at Wesleyan University, as reported by the student paper. He added: “Patriotic conservative that I am, I detest the burning of the nation’s flag. If I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, Congress, Supreme Court, even the nation or the nation’s flag.”

Trump’s order targets flag-burning for precisely the reason Scalia thought it was constitutionally protected: because it “is a statement of contempt” for the United States, as the order puts it.

Like both men, we find flag-burning contemptible — and understand the visceral emotion that virtually all Americans feel when they see Old Glory set ablaze. Scalia was correct, though, that the First Amendment protects contemptuous speech.

The order Trump issued Monday directs the attorney general to find “content-neutral laws … consistent with the First Amendment” with which to prosecute people who burn the flag and to “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” Flag-burning can be criminalized in certain contexts, such as when it destroys others’ property or creates a fire risk.

But Trump’s directive might actually make such prosecutions more difficult. It says Trump wants to target flag burning because of the message conveyed, calling it “offensive and provocative.” People prosecuted for flag burning — even if they could be prosecuted under a valid law — might point to such language to raise a constitutional defense.

Like many of Trump’s executive orders, this one seems intended less for its policy effect than as a provocation. If left-wing activists start burning flags to make a point, they will play right into Trump’s hands. Trump wants to wrap himself in the American flag. The challenge for opponents of the president is to behave more like Scalia — that is, to project their patriotism while also refusing to yield on core constitutional rights.


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that doesn't make any sense.

 

if you say so . . . one could also avoid jeopardy in the first place by choosing not to participate in riots

 

by the way, why would a fascist concern himself with crafting an EO that emphasizes staying within the bounds established by the Constitution? puzzling

 

actually, until we see some actual enforcement actions under the EO, it is extremely difficult to understand. Once again I believe this is simply street theater/red meat for the base, and troll bait for the TDS-inflicted

 

post-of-the-day

 

Trump’s new flag-burning executive order draws rare ire from conservatives: ‘This is garbage’

https://nypost.com/2025/08/26/media...tive-order-draws-rare-ire-from-conservatives/