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President Donald Trump on Monday signed an executive order directing the Justice Department to investigate and prosecute people for burning the American flag, a move that directly challenges decades of Supreme Court precedent protecting the act as free speech.
The order, signed in the Oval Office, acknowledges the landmark 1989 Supreme Court ruling in Texas v. Johnson, in which the justices voted 5-4 that flag burning is protected under the First Amendment. The late Justice Antonin Scalia, a conservative icon frequently praised by Trump, sided with the majority in that decision.
Still, Trump insisted there is legal ground for new prosecutions if flag burning is “likely to incite imminent lawless action” or qualifies as “fighting words.”
“Burning the U.S. flag incites riots at levels we’ve never seen before,” Trump told reporters. “People go crazy when they see it. Some of them get violent.” He did not provide specific examples.
The text of the order calls flag desecration “uniquely offensive and provocative,” labeling it “the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.” The directive instructs the attorney general to prioritize enforcing criminal and civil laws “to the fullest extent possible” against acts of flag burning that could be tied to violence or public disorder.
Trump said the penalty for burning a U.S. flag should be one year in jail without the possibility of early release. The order also imposes immigration consequences on foreign nationals convicted of the act, including revocation of visas, residency permits, naturalization proceedings, and potential deportation.
Critics are expected to challenge the order in court, arguing it violates long-standing First Amendment protections. Trump, however, dismissed the 1989 ruling as misguided.
“I guess it was a 5 to 4 decision. They called it freedom of speech,” Trump said. “But there’s another reason, which is perhaps much more important. It’s called death. Because what happens when you burn a flag is the area goes crazy.”
The Justice Department has not yet said how it intends to enforce the president’s directive given the constitutional protections affirmed by the nation’s highest court.
