Trump's executive order to prosecute American flag burners threatens to erode free speech protections that benefited him after Jan. 6

President Donald Trump has followed done connected a taxable helium raised during his 2024 campaign, issuing an enforcement bid to prosecute those who acceptable the American emblem connected fire. While a acold outcry from the jurisprudence of the precocious blimpish Justice Antonin Scalia, it's besides a menace to loosen escaped code protections that benefited Trump himself successful the aftermath of Jan. 6 and during his reelection campaign.

In the publicized enforcement order, Trump stated that due to the fact that the emblem is "a peculiar awesome successful our nationalist life" the desecration thereof is simply a "uniquely violative and provocative" enactment that "may incite unit and riot."

Next, the bid paid constricted attraction to the U.S. Supreme Court's 1989 ruling successful Texas v. Johnson, which held that Gregory "Joey" Lee Johnson's transgression condemnation for "flag desecration is inconsistent with the First Amendment" — upholding his close to freely explicit his anti-Reagan medication governmental code adjacent if that mode of that look was earnestly violative to a wide swath of Americans.

Of note, the Texas v. Johnson court, successful which the precocious blimpish Justice Antonin Scalia was a salient subordinate of the razor-thin majority, specifically rejected the conception that the authorities could "assume that each look of a provocative thought volition incite a riot," without archetypal looking to the "actual circumstances surrounding the expression." Law&Crime readers whitethorn callback that Johnson was arrested again successful 2019 aft burning a emblem connected July 4 extracurricular of the White House, earlier that lawsuit was swiftly dropped.

The Johnson tribunal expressly declined to disturb the large precedent of Brandenburg v. Ohio, which drew a favoritism betwixt a pro-Ku Klux Klan rally and code "directed to inciting oregon producing imminent lawless enactment and is apt to incite oregon nutrient specified action."

"To judge Texas' arguments that it request lone show 'the imaginable for a breach of the peace,' and that each emblem burning needfully possesses that potential, would beryllium to eviscerate our holding successful Brandenburg," the Johnson tribunal said. "This we diminution to do."

Some of Trump's astir public-facing defenders, whether during his 2nd failed impeachment oregon successful ineligible commentary, said Brandenburg shielded Trump from immoderate claims that helium incited the Jan. 6 onslaught connected the Capitol, which followed the president's code from the Ellipse that afternoon. During the speech, Trump told an aggravated assemblage of his supporters that the 2020 predetermination was stolen and "if you don't combat similar hell, you're not going to person a state anymore."

"I cognize that everyone present volition soon beryllium marching implicit to the Capitol gathering to peacefully and patriotically marque your voices heard," helium besides said.

Questions of statesmanlike immunity aside, George Washington University instrumentality prof Jonathan Turley, for instance, defended the president and remarked that the code was "entirely protected nether a lawsuit called Brandenburg and the First Amendment."

And Brandenburg besides helped Trump and Vice President JD Vance stave disconnected allegations that their falsehoods connected the run trail astir Haitian immigrants successful Ohio "eating the cats" amounted to felony inducing panic.

"Freedom of code is among our astir precious and protected law rights. It's enshrined successful the 1st Amendment of the United States Constitution. Indeed, the United States and Ohio Supreme Courts person recognized the value of speech, adjacent erstwhile it stirs radical to anger," a sheet of Ohio judges ruled, citing Brandenburg and Texas v. Johnson.

Trump's enforcement bid has forged up nonetheless, possibly teeing up the existent Supreme Court to yet determine what the Johnson tribunal wouldn't: whether emblem burning is "fighting words," which "that by their precise utterance inflict wounded oregon thin to incite an contiguous breach of the peace," oregon whether emblem burning is by its quality "likely" to incite imminent lawless enactment and is truthful illegal.

This emblem burning enforcement bid has it all:

Symbolic look is "violence" against the nation.

Heckler's veto justifications for censorship.

Misinterpretation/narrowing of the Brandenburg incitement standard.

A revitalization of the "fighting words" doctrine. pic.twitter.com/d71Xh087wV

— Nico Perrino (@NicoPerrino) August 25, 2025

Brandenburg v. Ohio told America fractional a period agone it has to enactment up with the Klan and transverse burnings, and the state survived. https://t.co/xFzcNc0DvV

— Matt Taibbi (@mtaibbi) August 25, 2025

"Notwithstanding the Supreme Court's rulings connected First Amendment protections, the Court has ne'er held that American Flag desecration conducted successful a mode that is apt to incite imminent lawless enactment oregon that is an enactment amounting to 'fighting words' is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989)," the enforcement bid said, claiming U.S. Attorney General Pam Bondi would enforce the directive "consistent with the First Amendment" and done "litigation" arsenic needed.

"In cases wherever the Department of Justice oregon different enforcement section oregon bureau (agency) determines that an lawsuit of American Flag desecration whitethorn interruption an applicable State oregon section law, specified arsenic unfastened burning restrictions, disorderly behaviour laws, oregon demolition of spot laws, the bureau shall notation the substance to the due State oregon section authorization for imaginable action," the bid said. "To the maximum grade permitted by the Constitution, the Attorney General shall vigorously prosecute those who interruption our laws successful ways that impact desecrating the American Flag, and whitethorn prosecute litigation to clarify the scope of the First Amendment exceptions successful this area."

Prior to his 2nd term, Trump openly advocated for one-year jailhouse sentences for anyone who dares "desecrate the American flag," remarking: "Now, radical volition accidental 'Oh, it's unconstitutional.' Those are anserine people. Those are anserine radical that accidental that."

He adjacent signaled that Congress would person to play a starring relation — which it hasn't.

"We person to enactment successful Congress to get a one-year jailhouse sentence. When they're allowed to stomp connected the emblem and enactment lighter fluid connected the emblem and acceptable it afire," helium said, "when you're allowed to bash that—you get a one-year jailhouse condemnation and you'll ne'er spot it again."

After Trump's enforcement bid threatened prosecutions, however, idiosyncratic burned a flag.

As precocious arsenic Monday, and successful striking similarity to decades-old protests following a legislature attempt to prohibition emblem burning, Jay Carey, a retired U.S. Army veteran, was handcuffed successful Lafayette Park extracurricular of the White House, aft burning an American flag.

Video from the scene showed him articulating SCOTUS' 1989 holding that emblem burning was protected look nether the First Amendment.

"I'm being detained due to the fact that I expressed my First Amendment close to pain the United States emblem successful public, not causing harm oregon causing immoderate information to immoderate citizens oregon unit successful the area," Carey said.

The video footage showed that aft helium lit the emblem connected occurrence successful defiance of Trump, helium said implicit a bullhorn: "I bash this for each azygous 1 of you American citizens. We pain this emblem successful protestation to that president who feels it's his close to bash immoderate helium wants, marque immoderate instrumentality helium wants, careless of whether it's ineligible oregon illegal."

"It is our First Amendment close to pain this flag, careless of what the president says," helium added, earlier the U.S. Secret Service led him distant successful handcuffs.

Scalia, the justness Trump implicitly lumped into a people of "stupid people" who support emblem burning, would decades aboriginal explain wherefore helium sided with Johnson: America is not ruled by a kingship, but was founded to flight one.

"You should beryllium successful nary uncertainty that, patriotic blimpish that I am, I detest the burning of the nation's flag—and if I were king I would marque it a crime," helium said successful 2012. "But arsenic I recognize the First Amendment, it guarantees the close to explicit contempt for the government, the Congress, the Supreme Court, adjacent the federation and the nation's flag."

When moving for president for the archetypal time, Trump vowed to "appoint judges precise overmuch successful the exemplary of Justice Scalia."

Colin Kalmbacher contributed to this report.