Can You Burn the Flag Now Without Violating the Constitution?

August 28, 2025 3

Trump’s executive order on flag burning sparks First Amendment questions.

The likelihood of the new executive order aiming to punish flag-burning – or “desecration” of Old Glory – affecting you directly is vanishingly small. I can’t imagine many of this newsletter’s readers have plans to set fire to the Stars and Stripes in a public place.

That doesn’t mean President Donald Trump’s latest questionable power flex won’t affect you. It could, not so much because of the strict language about supposed flag desecration, but because of a section of the order that has received less attention than it should.

Why It’s Legal to Burn the Flag

First, a bit of historical context. The Supreme Court ruled in Texas v. Johnson that burning a flag, when designed to express a political view, is protected speech under the First Amendment.

Gregory Lee Johnson set fire to a U.S. flag outside the 1984 Republican National Convention in Dallas to protest President Ronald Reagan’s policies.
He was convicted of violating a Texas law prohibiting “desecration of a venerated object” and sentenced to a year in prison.
Justice William J. Brennan, writing the majority’s 5-4 opinion, said, “The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.”
The courts later also struck down a federal flag-desecration law, using much the same reasoning.

How This May Affect You

Trump’s executive order acknowledges the Supreme Court precedent and directs the Justice Department to only seek to punish “acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” It says examples of this include violent crimes, hate crimes, property crimes and conspiracies.

“Every category of First Amendment-protected speech has its limits,” Alex Morey, a lawyer at the Freedom Forum, which defends that right, wrote this week. “Federal and state laws against crimes such as arson or property destruction have always been enforceable – even if they involve flag desecration.”

The potential broader implications of this order are in an almost offhand note that the Justice Department “may pursue litigation to clarify the scope of the First Amendment exceptions in this area.”

With a Supreme Court that is much more conservative – and likely to accommodate Trump – than the justices in 1989, that could lead to a new ruling that fundamentally alters what speech deemed offensive is protected and what is not.

A flag burning at the White House hours after this order may provide a test case.

Trump has long complained that speech is too free in America. He has pushed to rewrite libel laws to make it easier for officials like him to sue news outlets. He has pushed federal regulators to take ABC and NBC off the air in response to reporting he disliked. He has sued other outlets, like CBS, for editorial practices.

What I Learned From Previous Flag Disputes

There are actual written rules for displaying – and disposing of – a U.S. flag. (Mild) irony, the preferred method for retiring the Stars and Stripes is by burning.

Here’s a sample, courtesy of the Veterans of Foreign Wars: