Trump’s flag-burning order draws pushback, including from some conservatives

What happened

President Donald Trump signed an executive order on August 25, 2025, directing the Justice Department to prosecute acts of flag desecration “to the maximum extent permitted by the Constitution.” The order tells prosecutors to pursue cases under content-neutral laws and other criminal statutes that may apply when a flag is burned, and to seek to clarify the limits of existing First Amendment protections.

The directive drew rare criticism from the right. Several conservative commentators said that while they find flag burning offensive, it is protected speech under Supreme Court precedent.

Why flag burning is protected speech

The Supreme Court ruled in Texas v. Johnson (1989) that burning the flag as political protest is protected by the First Amendment, and reaffirmed that view in United States v. Eichman (1990), which struck down a federal flag protection law. The Court held that the government cannot punish expression simply because many people find it offensive.

Because of those precedents, the order focuses on other crimes that may occur alongside flag burning.

What the order does

The order directs the attorney general to prioritize enforcement of existing laws that can apply when a flag is burned, such as laws on violence, property damage and fire safety. It also encourages litigation to test the boundaries of First Amendment protections. The White House presented the move as protecting the flag while staying within constitutional limits.

When signing the order, Trump said people who burn the flag should face a year in jail, a statement that drew criticism from free-speech groups.

Criticism from conservatives

Radio host Dana Loesch wrote: “Flag burning is vile but the government has no right to control speech or expression.” Radio host Jesse Kelly called the order “garbage.” Commentator Erick Erickson wrote that “it is unfortunately well settled constitutional law that burning the flag is a matter of free speech.” Fox News senior political analyst Brit Hume also said the order conflicted with the Constitution.

Some conservative legal commentators argued the order is largely symbolic because it cannot override Johnson and Eichman.

The supporters’ case

Other conservatives defended the order’s scope. Ed Whelan of the Ethics and Public Policy Center wrote that the order’s aggressive-sounding language actually means acting “within the bounds permitted by law.” Podcast host Kira Davis wrote that the president “explained this is not a blanket ban.”

Supporters say the order targets dangerous conduct that accompanies flag burning, not the expression itself.

Incitement, fire codes and other limits

Prosecutors may rely on the Supreme Court’s Brandenburg v. Ohio standard, which allows punishment of speech only when it is intended and likely to produce imminent lawless action, and on fire and permit rules where burning happens in restricted areas. The White House has argued that flag desecration can provoke violence, an argument courts are likely to examine closely.

On the day the order was signed, Army veteran Jay Carey burned a flag in Lafayette Park near the White House and was arrested by U.S. Park Police. According to news reports, the charges related to park fire rules rather than flag desecration. He later pleaded not guilty to federal charges.

What courts will look at

If prosecutions reach court, judges are expected to examine whether charges rest on content-neutral laws applied evenly, or on hostility to the message of the protest. Where incitement is alleged, the government would have to show a threat of imminent lawless action. Civil liberties groups have said stand-alone desecration charges would be unlikely to survive under current precedent.

A split on the right

The reaction showed a divide among conservatives between those who favor stronger action to protect national symbols and those who prioritize free-speech protections. Many conservative media figures condemned flag burning but defended the legal right to do it, while a smaller group backed the order’s harder line.

Past attempts to ban flag burning

Since Johnson and Eichman, proposed constitutional amendments to allow flag desecration bans have passed the House several times but fallen short in the Senate. A constitutional amendment requires two-thirds votes in both chambers and ratification by three-quarters of the states. Without one, laws that punish the expressive act itself have been struck down.

Several states still have older desecration laws on the books, but courts have found them unenforceable when they target the message rather than conduct such as fire hazards or property damage.

Time, place and manner rules

Courts generally uphold rules that are content-neutral, narrowly tailored and leave open other ways to communicate. Permit requirements and fire codes fall into this category. Legal experts say such rules are vulnerable when they are enforced only when a flag is involved, so consistent enforcement is key.

Public institutions and private platforms

Public universities and city governments are bound by the First Amendment and must manage protests without discriminating by viewpoint, though they can set reasonable safety rules. Social media companies, by contrast, are private and can remove flag-burning videos under their own terms of service without raising First Amendment issues.

Other countries

A number of democracies treat flag desecration as an offense or restrict the misuse of national symbols. The United States is unusual in protecting the act as political expression, reflecting its broader free-speech tradition.

What to watch next

Key questions include what guidance the Justice Department issues to prosecutors, whether early cases rely on fire, park or property laws, and whether courts see any prosecutions as viewpoint discrimination. Politically, observers will watch whether conservative criticism of the order continues and whether members of Congress revive proposals for a constitutional amendment.