Trump Signs Order on Flag Burning: First Amendment Analysis

Key takeaways:

• Flag burning as a form of protest has been protected since the 1989 Supreme Court case Texas v. Johnson.
• President Trump's Aug. 25 executive order doesn't introduce new law but promises new, vigorous enforcement against crimes involving flag desecration.
• The president signals a willingness to challenge long-standing First Amendment protections for expressive flag burning.
• In Oval Office commentary, Trump went beyond the order's language, saying flag burning "incites riots" and would result in a one-year jail term.

Burning an American flag as a form of political protest or symbolic speech has been an established First Amendment right for nearly 40 years. But on Aug. 25, President Donald Trump announced an executive order on "Prosecuting Burning of the American Flag," saying his administration will "vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag," under "any available" legal authority.

The president acknowledged First Amendment protections around flag burning for expressive purposes while also signaling an eagerness to test and reshape those protections.

"Our great American Flag is the most sacred and cherished symbol of the United States of America," the executive order reads. "Desecrating it is uniquely offensive and provocative."

The order promises a new robust enforcement regimen — but under existing law. In addition to questions about the White House's desire to challenge established First Amendment precedent, it raises other questions on flag-related expression.

Is flag burning protected by the First Amendment?

America's First Amendment commitment to free expression always included strong protections for political criticism, however harsh or offensive.

Since 1989, when the U.S. Supreme Court decided Texas v. Johnson, the First Amendment right to engage in that criticism has explicitly included burning or desecrating an American flag. The court made clear its decision wasn't about flags, or even the First Amendment itself, but about even more fundamental freedoms at the heart of American democracy. Writing for the majority, Justice William Brennan said:

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The following year, in United States v. Eichman, the Supreme Court struck down the federal Flag Protection Act of 1989, which aimed to make flag desecration a federal crime, for those same reasons.

When does flag burning lose First Amendment protection?

Every category of First Amendment-protected speech has its limits. Flag burning is no different and, in some ways, has always been uniquely limited. Federal and state laws against crimes such as arson or property destruction have always been enforceable — even if they involve flag desecration.

And if courts find an instance of flag burning crosses the line into an unprotected category of "speech," such as incitement to imminent lawless action, true threats or fighting words, it would similarly lose First Amendment protection.

But those laws generally punish conduct, not protected speech. Again, the Supreme Court was clear that the First Amendment protects a person's right to express themselves by burning a flag, no matter how offensive that might seem to some.

What exactly does Trump's executive order say about flag burning?

President Trump's order directs the U.S. attorney general to "vigorously prosecute" instances of law breaking that involve flag desecration, with special emphasis on cases involving foreign nationals. It suggests using existing federal and state laws.

The president and attorney general do not have the power to enforce state laws. The most they can do is request that state authorities aggressively prosecute these crimes as well. It is also unclear what specific federal laws can be enforced, given that none criminalizing flag burning have been enforceable since the Texas v. Johnson decision, even if they remain on the books.

The order clarifies enforcement will be limited to situations where flag desecration overlaps with other crimes — and this is required for the order to be constitutional. This may include theft or arson of a flag owned by the federal government, such as one flying in front of a government office building, or an action that occurs on federal property in violation of a federal law like one prohibiting disorderly conduct or rioting. In particular, the order emphasizes crimes that "incite" violence or other criminal behavior.

But again, the flag burning itself would have to occur in a manner not protected by the First Amendment — such as a person burning the flag to incite others to imminent lawless action.

How might the order affect flag burning and other forms of symbolic speech?

Upon signing the executive order, President Trump said, "If you burn a flag, you get one year in jail. You will see flag burning stop immediately."

The order, however, promises adherence to constitutional and other relevant law, which allows flag burning in many cases. It also promises content neutrality — meaning enforcement won't target only certain instances of flag desecration, depending on the messages or viewpoints involved, but rather will apply broadly.

The president's comments around the executive order, coupled with the order's promise to direct sweeping, vigorous enforcement, raise questions about potential chilling effects on protected acts of speech and expression.

A chilling effect occurs when a governmental law or policy is so vague or overly broad that it causes people to refrain from speaking or expressing themselves — or burning a flag, in this case — for fear of violating that policy.

What happens now?

It's possible one or more people or organizations will file a lawsuit seeking to have the executive order declared unconstitutional as a violation of the First Amendment and to prevent it from going into effect. Those lawsuits would likely cite a White House fact sheet issued alongside the executive order as evidence that the real purpose behind the order is to punish dissent. That fact sheet states a goal to "restore respect, pride, and sanctity to the American flag" and says that "desecrating it is uniquely and inherently offensive and provocative."

In the event someone is arrested simply for desecrating a flag, that person may raise the First Amendment as a defense. While those who desecrate a stolen flag may not have a particularly strong defense to a theft charge, anyone who is charged with disorderly conduct or breach of the peace for burning their own flag may claim they were engaged in protected speech, with prosecutors likely to argue that the individual's actions fall into one of the unprotected categories of speech, such as incitement to imminent lawless action. Those categories are defined very narrowly, and the government must prove the speech — or, in this case, the act of flag desecration — falls into one of these categories.

Hours after the order was signed, it was put to the test just outside the White House when a man set an American flag on fire while denouncing the order over a megaphone.

"It is our First Amendment right to burn this flag, regardless of what the president says," the man, who described himself as a 20-year U.S. Army combat veteran, said to the group of people around him in Washington, D.C.'s Lafayette Square, before being placed in handcuffs.

The U.S. Park Police said it arrested a person for violating the National Park Service's fire policy, and the man said in an interview later that night that he was released after about four hours, stating, "I'm not in jail for a year."

Alex Morey is a First Amendment specialist at Freedom Forum. She can be reached at [email protected].