Trump Orders Prosecution of Flag Burners, 36 Years After the Supreme Court Protected It

On August 25, 2025, President Trump signed an executive order directing the Justice Department to pursue prosecutions for burning the American flag and to bring litigation testing the scope of First Amendment protection for flag desecration. The order also instructs the government to deny or revoke immigration benefits for noncitizens who desecrate the flag. Trump said offenders should face a year in prison. Attorney General Pam Bondi said the approach "will not run afoul of the First Amendment." The same day, Trump signed a separate order seeking to end cashless bail in Washington and threatening federal funds for jurisdictions that use it, with Bondi directed to identify affected cities including New York and Chicago.

In Texas v. Johnson (1989) the Supreme Court held that burning the flag as political expression is protected speech, and it reaffirmed that holding in United States v. Eichman (1990) after Congress passed a statute in response. An executive order cannot supersede those decisions; its practical effect is to direct prosecutorial resources toward conduct the Court has protected, and to attach immigration consequences to expression.

No new criminal statute accompanied the order, and any prosecution would proceed under existing law subject to Johnson and Eichman. Legal commentators described the order as an invitation for the Supreme Court to revisit that precedent.