U.S. President Donald Trump has announced an executive order aiming to prosecute individuals who burn the American flag, even though the U.S. Supreme Court has previously ruled that flag burning is protected as free speech.
The order, issued on Monday, states that the administration will “prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.”
“The American flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative,” the executive order says. It also describes flag burning as “a statement of contempt, hostility, and violence against our Nation” that could incite unrest.
Attorney General Pam Bondi is directed to “prioritise 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.” The order emphasises pursuing litigation to clarify the limits of First Amendment protection in this area.
However, the Foundation for Individual Rights and Expression (FIRE), a nonpartisan free speech advocacy organisation, has criticised the move. “Flag burning as a form of political protest is protected by the First Amendment,” said FIRE Chief Counsel Bob Corn-Revere. “While people can be prosecuted for burning anything in places where fires are not allowed, the government cannot punish protected expressive activity, even if many Americans, including the president, find it offensive.”
The legal context dates back to the 1989 Supreme Court decision in Texas v. Johnson, which ruled 5-4 that burning the American flag during a political protest is constitutionally permissible. The case involved Gregory Lee Johnson, who burned a flag outside the 1984 Republican National Convention in protest of President Ronald Reagan.
Justice William Brennan, writing for the majority, explained that the state could not justify Johnson’s conviction because his actions did not threaten public peace. “Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression,” Brennan wrote.
Chief Justice William Rehnquist dissented, arguing that the American flag holds a unique symbolic position that could justify legal restrictions on flag burning. He wrote, “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”
Based on reporting by The Christian Post.
