The Legal Question of Flag Burning
Free speech is a right guaranteed to American citizens by the United States Constitution. The right to protest is a form of free speech. But at what point can protesting also get a person into trouble? One of the most hotly contested free speech issues throughout American history has been whether it is acceptable to burn or otherwise hurt the American flag. Recently, President Trump announced an executive order that makes flag burning. But is this an unconstitutional violation of free speech rights?
Trump’s New Executive Order
On August 25, 2025, President Trump issued an executive order stating that harming the flag is an assault on the fundamental values of the United States. The executive order also states that flag burning is a threat to public safety and can lead to riots. Because of this, anyone who burns or hurts the flag will be prosecuted by the U.S. attorney general. In addition, according to the executive order, anyone who burns the flag but is not a U.S. citizen can be detained or deported.
A Historic Debate
Throughout American history, a surge in flag burning and anti-government sentiment has tended to bring about stricter laws about the flag. For example, Americans damaging the flag in protest of the Civil War led to new state-level laws preventing flag-burning in the 1800s. This led to anti-war protestors being arrested for flag burning demonstrations during World War I.
Public demonstrations against the Vietnam War also included flag burning. This resulted in the Flag Protection Act of 1968. This congressional act stated that anyone who burned or destroyed the flag would be fined and imprisoned for up to one year. Decades of debate and protest then led to another Flag Protection Act in 1989, which was later struck down for being unconstitutional.
An increase in anti-government protesting today have once again motivated the president to try limiting flag burning and similar demonstrations.
The Supreme Court Interpretations
Several times, the U.S. Supreme Court has ruled that flag burning is a legal and protected form of free speech. One case was heard in 1989, when a man named Gregory Lee Johnson burned a flag at the Republican National Convention to protest Ronald Reagan’s presidential administration. Johnson was arrested, sentenced to a year in jail, and fined $2000. However, his case (called Texas v. Johnson) made it all the way to the Supreme Court. The Court ruled in a 5-4 decision that flag burning is a legal form of free speech. The majority stated that all speech must be protected, even speech that people might find offensive.
The U.S. Congress responded to the Texas v. Johnson ruling with the 1989 Flag Protection Act. The goal of this was to make the Court’s protection of flag burning irrelevant. But the Supreme Court ruled again on the issue in 1990, in a case called United States v. Eichman. Again, the Court said that flag burning was a form of protected free speech. It struck down the 1989 Flag Protection Act, saying that the government’s interest in protecting the flag as a symbol did not outweigh citizen’s right to protest.
Trump’s new executive order does note that historically, the Supreme Court tends to rule in favor of flag burning as free speech. But the order states that the Court has protected this as an acceptable form of protest. It has not directly protected flag burning if it is likely to incite violence or lawlessness.
However, civil rights experts say that the Trump administration will have difficulty proving that someone’s flag burning protest is attempting to incite violence or lawlessness. Legal experts also note that the executive order’s goal to detain or deport non-citizens for burning the flag isn’t legal. The Constitution protects the free speech rights of everyone in the United States.
Show What You Know What part of the Constitution protects free speech? What does it say?
