Let's Talk about Flag Burning
A response to President Trump's recent Executive Order, and an opportunity to understand an aspect of First Amendment Law.
The First Amendment of the United States Constitution is widely regarded, among political and legal scholars, as the gold standard for freedom of speech. Since its inception in 1791, the First Amendment has sparked intense debate over what speech it protects. For centuries, landmark Supreme Court cases have addressed speech-related issues, including defamation, scrutiny, obscenity, and symbolic expression. When it comes to symbolic expression, no case is more famous or groundbreaking than the 1989 Texas v. Johnson decision. In this case, the Supreme Court recognized burning the American flag as protected speech under the First Amendment, classifying it as symbolic and political expression.
Since the Supreme Court’s ruling over 35 years ago, few attempts have been made to enact Federal policies restricting flag burning, with one notable exception from the 1990s (discussed later). If we fast-forward to August 25, 2025, we see that President Trump signed Executive Order 14341, titled “Prosecuting Burning of the American Flag.” As expected, left-leaning political groups and commentators, such as So Informed and Dean Withers, quickly labeled the order unconstitutional, accusing Trump of aspiring to “be a dictator.”
To clarify my position and avoid confusion, I fully support the Supreme Court’s decision in Texas v. Johnson. Although I strongly condemn burning the American flag, I unwaveringly defend my fellow citizens’ right to do so. While I disagree with Trump’s executive order on its surface, the issue is more nuanced than it appears. Given that this order, like many of Trump’s previous executive actions, will likely face legal challenges, two key questions arise: If the courts review Executive Order 14341, is it unconstitutional? If analyzed closely, does it align with Texas v. Johnson?
Let’s explore these questions together.
The Time & Place for When to Burn the Flag
Although “flag burning” often carries a negative connotation tied to radical protests, there are also respectful and ethical occasions for burning the U.S. flag. Under the U.S. Flag Code, Title 4, Section 8(k), “Respect for flag,” it is explicitly stated:
(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
Retirement Ceremonies
When a U.S. flag is worn out, the most common and dignified method of disposal is a retirement ceremony. During these solemn rituals, the flag is ceremonially folded, a procession is held, its symbolism is read aloud, the Pledge of Allegiance is recited, and the flag is respectfully burned. While any citizen may conduct a retirement ceremony, formal ceremonies are typically led by the military or patriotic organizations, such as the American Legion, Veterans of Foreign Wars, or the Boy Scouts of America.
In Acts of Protests
Since the 1989 Texas v. Johnson ruling, burning the U.S. flag has been recognized as protected under the First Amendment as both:
Political Speech: If discussing political matters, including commentary on laws, policies, public issues, political parties, or candidates, it qualifies as protected speech.
Symbolic Speech: If a physical action purposefully conveys a specific message to observers, it is protected as symbolic expression.
While burning the flag is legally protected, there are critical legal caveats:
If burning a flag, it must be owned by the individual or group, as the flag is private property.
If someone burns another’s flag without permission, it constitutes theft or vandalism.
If burning the flag risks damage to public or private property, it may be classified as arson.
If burning the flag causes physical harm to others, it may constitute battery (if intentional) or an unintentional tort (if accidental).
As long as citizens adhere to these guidelines, they are fully within their constitutional rights to burn the flag as a form of protest.
With this context in mind, let’s examine the content of President Trump’s Executive Order.
The Content of Executive Order 14341
Signed on August 25, 2025, Executive Order 14341, “Prosecuting Burning of the American Flag,” directs the Attorney General to prioritize prosecuting flag burning that violates content-neutral laws, such as those related to violent crimes, hate crimes, or property damage. If flag burning incites imminent lawless action or constitutes “fighting words,” the order seeks to clarify these First Amendment exceptions through litigation. Additionally, it instructs federal agencies to refer violations to state or local authorities and to pursue immigration-related actions against foreign nationals engaging in flag desecration.
By focusing on “applicable, content-neutral laws” addressing harms unrelated to expression—such as violent crimes or property damage—the order aligns with Texas v. Johnson. In that case, the Supreme Court applied the United States v. O’Brien (1968) test—known formally as the O’Brien Test—permits restrictions on expressive conduct if they are unrelated to suppressing expression and meet specific criteria. If the order targets laws governing open burning or disorderly conduct, it operates within the constitutional framework of Johnson, avoiding direct punishment of flag burning as protected speech.
Upon closer inspection, the executive order is more consistent with the First Amendment than critics initially claimed. Despite this, left-leaning critics swiftly condemned it as anti-First Amendment. On the day Trump signed the order, a protester burned a flag outside the White House in retaliation and was promptly arrested by U.S. Park Police.
If this sounds like a blatant violation of the protester’s rights, it’s not that simple. The individual was not arrested for burning the flag as an act of protest. Instead, he was arrested for setting the flag on fire in a public park—Lafayette Square—where open burning posed a fire hazard. Even without expertise in fire safety laws, it’s clear that setting something ablaze in a public space risks harm to people, animals, or vegetation. If implemented as intended, Trump’s executive order targets unsafe flag burning, not the act of protest itself.
To provide historical context, this is not the first attempt to regulate flag burning. In the 1990s, an effort to restrict it was endorsed by then-Senator and future President Joe Biden:
My Message To Protestors
Given the focus on prosecuting hazardous flag burning, this executive order will likely face immediate legal challenges. If it reaches the Supreme Court, it could clarify the legal boundaries of burning the American flag or any flag as political or symbolic speech. As the order notes, the Court has never held that flag desecration likely to incite imminent lawless action or constituting “fighting words” is constitutionally protected. If upheld, this could set a new precedent for regulating expressive conduct.
To my fellow citizens wishing to exercise their First Amendment right to burn the American flag in protest, I offer this advice:
Although I will never condone or join such protests, I will fiercely defend your right to do so. If you choose to burn the flag, ensure you do so legally:
If burning a flag, confirm you own it or have permission from the owner.
If tempted to take another’s flag, refrain, as this constitutes theft.
If burning the flag, avoid locations where it could harm buildings, vehicles, animals, vegetation, or people.
While burning the American flag is your constitutional right, it remains a choice. If your goal is to send a bold message, burning the flag will certainly draw attention. However, waving the flag proudly can convey the same impact. The American flag symbolizes our nation’s motto, E Pluribus Unum (Out of Many, One), representing all citizens across all 50 states. When we salute or wave the flag, it’s not a gesture of superiority but an expression of unity and appreciation for our fellow Americans. If we disagree with our country or its leaders, we still share the power to improve it.
No symbol unites our nation more than the American flag. If you seek to raise awareness for a social or political cause, waving the flag proudly invites all Americans—regardless of background or beliefs—to join your cause. It’s a powerful way to show we’re in this together.
Just some food for thought from a fellow American.
Thank you for taking the time to read! If you enjoyed it and wish to support my future work, you can tip me at this link: https://buymeacoffee.com/timelinesandheadlines
Thank you so much!