By Sophia Doan
Earlier this year, President Donald Trump issued an Executive Order stating that the Department of Justice must prosecute for the burning of the United States flag. However, the Supreme Court ruled in Texas v. Johnson that “flag burning constitutes symbolic speech protected by the First Amendment” (uscourts.gov). Although the issue of the legality of burning a national flag appears as an issue of nationality on the surface, the discussion quickly switches to one of constitutionality. Reads the amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (constitution.congress.gov). Proponents of the legality of flag burning argue that the right to display distrust of government remains protected by the first amendment. Supporters conclude that placing restrictions on citizens burning the flag directly impedes on their freedom of speech. In Texas v Johnson, “A 5-4 majority held that states cannot enact blanket bans on flag desecration because, under some circumstances, flag burning is a form of symbolic speech protected by the First Amendment” (scotusblog.com). Justice Antonin Scalia spoke on the decision in an interview, claiming “[the First Amendment] says that the right of free speech shall not be abridged… burning the flag is a form of expression” (wbur.org). Since the ruling in 1998, legally citizens have had the right to burn the United States flag.
To much shock, on August 25, 2025, President Trump published an executive order regarding the issue of burning the flag. In the official White House statement, Trump articulates, “my administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence… while desecrating this symbol of our country” (whitehouse.gov). Critics of the order have pointed out that the statement directly contradicts the Supreme Court ruling, while supporters argue that there are loopholes in the initial ruling. The Trump Administration seeks to differentiate between legal forms of speech and fighting words—speech that incites violence. Arguing against the ruling, supporters claim how burning the American flag can provoke others to become violent.
So where does the issue stand now? Clarifies a blog on the topic, “Trump’s order does not impose a new national ban on flag burning but instead encourages Bondi and others to prosecute flag burners under existing laws, such as laws prohibiting fires in fire safety zones” (scotusblog.com). Overall, the issue remains highly debated, with complexities regarding constitutionality, censorship, and nationalism creating high strung emotions around the topic.