Trump wants to punish flag burning. Is burning the American flag illegal?

Trumps makes remarks connected D.C. transgression

Trump makes Oval Office remarks connected D.C. crime, signs enforcement orders 23:50

Washington —  President Trump signed an enforcement order Monday that seeks to punish radical who pain the American flag, accusing those who bash truthful of displaying hostility and contempt toward the United States.

Mr. Trump has for years threatened to ace down connected emblem burning. In 2016, helium wrote connected societal media that anyone who burns the American emblem should suffer their citizenship oregon look jailhouse time. During a 2024 speech earlier the National Guard Association of the United States, then-candidate Trump said helium would enactment to walk a instrumentality imposing transgression penalties connected those who pain the American flag.

In remarks from the Oval Office connected Monday, Mr. Trump alleged that burning the American emblem "incites riots" and said those who are prosecuted and convicted arsenic a effect of his directive would look 1 twelvemonth successful prison.

"The radical successful this state don't privation to spot our American emblem burned and spit on," the president said.

Trump's enforcement bid connected emblem burning

Titled "Prosecuting Burning of the American Flag," Mr. Trump's executive order does not nonstop the lawyer wide to prosecute those who pain flags for the enactment itself. Rather, it says the Justice Department should bring cases "against acts of American Flag desecration that interruption applicable, content-neutral laws, portion causing harm unrelated to expression, accordant with the First Amendment." Examples of those laws see "violent crimes; hatred crimes, amerciable favoritism against American citizens, oregon different violations of Americans' civilian rights; and crimes against spot and the peace."

The directive acknowledges a 36-year-old Supreme Court determination that recovered emblem burning is protected code but adds that "American emblem desecration conducted successful a mode that is apt to incite imminent lawless enactment oregon that is an enactment amounting to 'fighting words'" whitethorn not beryllium entitled to the aforesaid extortion nether the First Amendment.

The bid directs the caput of state, lawyer wide and caput of homeland information to instrumentality enactment against overseas nationals who person engaged successful "American flag-desecration activity," including by revoking their visas oregon residence permits, oregon seeking their removal from the U.S.

The lawyer general, Mr. Trump's enforcement bid states, "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."

Bob Corn-Revere, main counsel astatine the Foundation for Individual Rights and Expression, said successful effect to Mr. Trump's enforcement bid that the president does not person the powerfulness to alteration the First Amendment.

"Flag burning arsenic a signifier of governmental protestation is protected by the First Amendment. That's thing new. While radical tin beryllium prosecuted for burning thing successful a spot they aren't allowed to acceptable fires, the authorities can't prosecute protected expressive enactment — adjacent if galore Americans, including the president, find it 'uniquely violative and provocative,'" helium said successful a statement. "You don't person to similar emblem burning. You tin condemn it, statement it, oregon hoist your ain emblem adjacent higher. The quality of escaped code is that you get to explicit your opinions, adjacent if others don't similar what you person to say."

Is emblem burning protected by the First Amendment?

The president's directive appears aimed astatine re-opening the question successful the courts of whether emblem burning is constitutionally protected speech. While Mr. Trump believes that it should beryllium amerciable to pain the American emblem and sought to unilaterally people those who prosecute successful this conduct, the Supreme Court ruled successful 1989 that the enactment is expressive behaviour covered by the First Amendment.

The 5-4 determination successful the landmark lawsuit Texas v. Johnson arose from Gregory Lee Johnson's condemnation nether a Texas instrumentality that prohibited desecration of a venerated object. Johnson had burned an American emblem extracurricular of Dallas City Hall successful protestation of then-President Ronald Reagan's policies successful 1984. He was sentenced to 1 twelvemonth successful situation and fined $2,000.

But the Supreme Court ruled that Johnson's condemnation for emblem desecration was inconsistent with the First Amendment, since his emblem burning constituted protected expressive conduct. Among the members of the five-justice bulk were Justices Antonin Scalia and Anthony Kennedy, who often served arsenic the plaything ballot aft Justice Sandra Day O'Connor retired.

During a 2012 interview with CNN, Scalia, a blimpish stalwart, defended the precocious court's determination connected emblem burning and reiterated that the enactment is simply a signifier of expression.

"If I were king, I would not let radical to spell astir burning the American flag," helium said. "However, we person a First Amendment, which says that the close of escaped code shall not beryllium abridged — and it is addressed successful peculiar to code captious of the government. That was the main benignant of code that tyrants would question to suppress."

Scalia told CNN that "burning a emblem is simply a awesome that expresses an thought — I hatred the government, the authorities is unjust, whatever."

Referencing the 1989 ruling, Mr. Trump told reporters successful the Oval Office connected Monday that the lawsuit was decided by a "very bittersweet court."

One twelvemonth aft that decision, the Supreme Court ruled successful the lawsuit United States v. Eichman that a national instrumentality criminalizing emblem burning was unconstitutional.

Congress had passed that law, known arsenic the Flag Protection Act, successful 1989 successful effect to the precocious court's ruling successful Texas v. Johnson. The instrumentality made it a transgression to knowingly mutilate, deface, physically defile, pain oregon trample upon the American flag, and violators faced a good oregon up to 1 twelvemonth successful prison.

But successful another 5-4 decision, again with Scalia and Kennedy successful the majority, the Supreme Court ruled that prosecutions of protesters who burned flags successful usurpation of the Flag Protection Act were inconsistent with the First Amendment.

"Punishing desecration of the emblem dilutes the precise state that makes this emblem truthful revered, and worthy revering," Justice William Brennan wrote for the majority.