President Trump has long opposed flag burning as a form of protest, and now he's directing the Justice Department to prioritize prosecutions of people who set the American flag on fire.
On Monday, Trump signed an executive order instructing the attorney general to pursue cases against people who "incite violence or otherwise violate our laws while desecrating this symbol of our country."
When Trump signed the order, he said that there are a slew of ways people can protest the government. "But when you burn the American flag, it incites riots at levels that we've never seen before. People go crazy," he said.
Free speech attorneys note that the Supreme Court has ruled on multiple occasions that flag burning is protected by the First Amendment and say Trump's effort runs afoul of settled law.
David Cole, a professor at Georgetown Law who has represented flag burners in several high-profile cases, said people can legally use the American flag as they see fit.
"It can be used to wave it to express support for the government. It can be used to burn it to express opposition to the government," Cole said. "But what is most important is that the government doesn't get to tell us how we should use symbols and speech. We get to make those decisions."
American flag desecration dates back to the Civil War
Incidents involving the desecration of the American flag date back at least as far as the Civil War, according to Jonathan White, a professor of American Studies at Christopher Newport University.
"Some of it was Union soldiers who were really angry about the direction the war was going, and they might curse at the flag or say something negative about it," White said. "I also found women and young girls who were court martialed — tried before military courts — for desecrating the flag in some cases."
In the late 19th century, some U.S. states began passing laws blocking people from desecrating the flag, which led to a series of prosecutions of anti-war protesters during World War I, according to White.
During the Vietnam War, there was a resurgence in flag burning as critics blasted the U.S. government's ongoing involvement in the conflict. Congress passed the Flag Protection Act of 1968, and by 1989 there were 48 states with laws that in some way restricted the desecration of the American flag.
The Supreme Court case that protected flag burning
That same year, the Supreme Court heard the case of a man named Gregory Lee Johnson, who had been arrested five years earlier for burning an American flag at the Republican National Convention in Dallas to protest the actions of Ronald Reagan's administration. Found guilty of violating Texas law, Johnson was sentenced to one year in jail and fined $2,000.
But his appeals took him to the Supreme Court, which ruled in a 5-4 decision that burning of the American flag was a form of protected speech under the First Amendment.
"If there is a bedrock principle underlying the First Amendment," Justice William Brennan wrote in the majority opinion for Texas v. Johnson, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Notably, the ruling didn't divide the court neatly along ideological lines. In fact, one of the other justices in the majority was conservative icon Antonin Scalia. (In a post on X Tuesday, Vice President JD Vance called Scalia a "great Supreme Court Justice" but said "Texas v. Johnson was wrong.")
Congress attempted to ban flag burning at the national level that year, but the Supreme Court ruled again, in 1990, that it constituted free speech and struck down the law.
Trump's order nods to the free speech protections
Though Trump's executive order acknowledges the free speech rights associated with flag burning, it also says the Supreme Court has never held that flag burning is constitutionally protected if it's done in a way "likely to incite imminent lawless action or that is an action amounting to fighting words.' "
But Brian Hauss, an attorney with the American Civil Liberties Union, said the vast majority of people who burn flags aren't attempting to incite violence and suggested the Trump administration is looking for an excuse to take such cases to court.
"If somebody is burning a flag in protest and they're not telling people to go engage in violence, the government can't look at that any say, 'Oh, well, that could have the effect of causing violence to stir up so therefore we get to prosecute,'" he said.
Flag burning can be prosecuted when it violates what's known as a "content-neutral" law, such as an ordinance that prohibits outdoor fires in a certain area, the attorneys said. (A man who burned a flag outside the White House on Monday in protest of Trump's executive order was arrested by the U.S. Park Police for violating a statute barring fires in public parks, NBC News reported.)
But Cole, who was one of the attorneys for Gregory Lee Johnson in the 1989 case, said the Trump administration appears to be planning to selectively prosecute people who burn the flag.
"This executive order, by singling out flag burning and singling it out because the president finds its message offensive," Cole said, "will be Exhibit A [for] anyone who is in fact prosecuted under these content-neutral laws, arguing, 'Look, the reason they went after me was not the mere fact that I was burning something but the specific fact that I was burning the flag."
Cole also said the provision of the executive order threatening to deny or revoke visas and other immigration benefits to non-citizens who burn flags fails to recognize that the First Amendment protects everyone in the U.S.
"Just as you cannot throw someone in jail for burning an American flag, you can't deport someone for burning an American flag," he said. "So, at the end of the day, this executive order is symbolism and theater. It is not a realistic attempt to respond to any real world problem."
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