Trump moves to ban flag burning despite Supreme Court ruling that
Constitution allows it
[August 26, 2025]
By DARLENE SUPERVILLE
WASHINGTON (AP) — President Donald Trump on Monday signed an executive
order requiring the Justice Department to investigate and prosecute
people for burning the American flag, an activity that the U.S. Supreme
Court has ruled is legitimate political expression protected by the U.S.
Constitution.
The order the Republican president signed in the Oval Office
acknowledged the court’s 5-4 ruling in a case from Texas in 1989, but
said there is still room to prosecute flag burning if it “is likely to
incite imminent lawless action” or amounts to “fighting words.”
“You burn a flag, you get one year in jail. You don’t get 10 years, you
don’t get one month,” Trump said. “You get one year in jail, and it goes
on your record, and you will see flag burning stopping immediately.”
The order also called for Attorney General Pam Bondi to pursue
litigation to challenge the 1989 ruling, an attempt by Trump to get the
issue back in front of the Supreme Court. Today's Supreme Court is much
more conservative than the makeup of the court in 1989 and includes
three judges Trump appointed in his first term.
Civil liberties advocates and constitutional scholars questioned both
the legality and the merit of Trump’s action. A lawyer working for a
free speech group said Trump does not have the power to rewrite the
First Amendment.
“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,’” added Bob Corn-Revere,
chief counsel of the Foundation for Individual Rights and Expression.
In the 1989 case, the justices ruled 5-4 that the First Amendment
protects flag burning as legitimate political expression. The late
Justice Antonin Scalia, the conservative icon whom Trump has repeatedly
praised, was in the majority.
On Monday, Trump described the 1989 court behind the ruling as a “very
sad court.”
Trump said burning the U.S. flag “incites riots at levels we’ve never
seen before,” with some people “going crazy” over the act of setting it
afire and others expressing anger at people for burning it. He did not
offer examples.
A White House fact sheet referenced recent protests, including in Los
Angeles in June, where the flag was burned “alongside violent acts and
other conduct threatening public safety.”
“All over the country they're burning flags. All over the world, they
burn the American flag,” Trump said, as Vice President JD Vance, Bondi,
Defense Secretary Pete Hegseth and other administration officials stood
behind him as he sat at his desk.
[to top of second column]
|
President Donald Trump holds up a signed executive order requiring
the Justice Department to investigate instances of flag burning, in
the Oval Office of the White House, Monday, Aug. 25, 2025, in
Washington. (AP Photo/Evan Vucci)
G.S. Hans, a law professor at Cornell University who focuses on the
First Amendment, said the country has not suffered from an “endemic
of flag burning.”
“I don’t think this is something that has been a big problem,” Hans
said in an interview. “It’s a solution in search of a problem.”
The executive order states that desecrating the American flag is
“uniquely offensive and provocative. It is a statement of contempt,
hostility, and violence against our Nation — the clearest possible
expression of opposition to the political union that preserves our
rights, liberty, and security. Burning this representation of
America may incite violence and riot.”
The order calls on the attorney general to prioritize enforcement
“to the fullest extent possible” of criminal and civil laws against
flag burning that cause harm unrelated to the First Amendment's free
speech guarantee.
“Thank you for protecting the American flag, and we'll do that
without running afoul of the First Amendment as well,” Bondi told
the president.
Foreign nationals could face having their visas, residency permits,
naturalization proceedings and other immigration benefits revoked,
according to the order. They could also be deported.
Flag-burning has been on Trump's mind for years.
After he was elected president in November 2016, Trump said “there
must be consequences” for anyone who burns an American flag, such as
jail or loss of citizenship.
“Nobody should be allowed to burn the American flag — if they do,
there must be consequences — perhaps loss of citizenship or year in
jail!” Trump wrote on what then was Twitter.
The Constitution forbids the government from stripping citizenship
from natural-born Americans.
___
Associated Press writer Mark Sherman contributed to this report.
All contents © copyright 2025 Associated Press. All rights reserved
 |
