On August 25, 2025, President Donald Trump issued an executive order directing federal agencies to prosecute acts of flag desecration where they allegedly coincide with criminal behavior. Additionally, the order claims to target only instances that incite violence or violate “content-neutral” laws on flag burning.
But even a cursory reading of the First Amendment, and the Supreme Court’s unbroken string of rulings on the subject, raises serious constitutional concerns about this executive order. While protecting symbols of American freedom and liberty is a worthwhile endeavour, the specifics of this executive order pose major constitutional problems, and potentially undermine many American liberties it attempts to protect.
While the Supreme Court has previously ruled very clearly that flag burnings are protected under the First Amendment, President Trump attempts to justify his executive order in three ways.
Justification No. 1: Imminent Lawless Action
The executive order leans heavily on the idea that flag burning can sometimes qualify as incitement to violence. However, in 1969, the Supreme Court ruled in Brandenburg v. Ohio that the bar for incitement to violence is extremely high. The government may only prohibit speech under this exception to the First Amendment if the speech in question is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
It’s not enough for expression to be offensive, controversial, or even to provoke angry responses. It must clearly and intentionally trigger immediate illegal action. Anything short of that is constitutionally protected.
So the obvious question becomes: How do you prove that one flag burning is likely to incite illegal action while another is not?
In Texas v. Johnson (1989), the Court rejected Texas’s argument that flag desecration inherently breaches the peace. It acknowledged that some might find it offensive or provocative, but offensive expression is not a license for government censorship. It is clearly established that the Supreme Court sees flag burning as symbolic speech, and determining whether a specific flag burning is intended to incite imminent lawless action seems incredibly difficult.
Justification No. 2: Fighting Words, A Nonstarter for Symbolic Speech
The executive order also invokes the “fighting words” doctrine, derived from Chaplinsky v. New Hampshire (1942). But this justification is even harder to support than incitement to lawless action. To explain, this exception is narrow and has only been narrowed further in subsequent rulings.
To qualify as fighting words, an expression must:
- Be directed at a specific person, and
- Be likely to provoke immediate physical retaliation.
This is not a close call, as flag burning does neither of these things.
As the Supreme Court held in Cohen v. California (1971), the First Amendment protects provocative speech that isn’t aimed at a particular individual. Cohen’s jacket, which he wore into a courthouse, read “F*** the Draft”—clearly offensive, but clearly protected by the First Amendment.
The Court reiterated this principle in the case Texas v. Johnson:
“No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government (expressed through burning an American flag) as a direct personal insult or an invitation to exchange fisticuffs.”
Flag burning is not a direct personal insult, nor is it verbal assault. It’s expressive conduct, and the Constitution protects it. It seems impossible to apply the fighting words doctrine to flag burning, as it boggles the mind how a reasonable individual observing a flag burning could see it as provocative, violence-inducing speech targeted clearly at them and no other individual. Some may be offended by a flag burning, but any reasonable person will understand it is not a violent provocation targeted at a particular person.
Justification No. 3: The Mirage of Content Neutrality
The Trump administration insists this executive order is content-neutral because it targets conduct that coincides with illegal activity, not expression itself. But that argument doesn’t withstand scrutiny.
Consider this language from the executive order itself:
“Desecrating it [the flag] is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation.” — Sec. 1, Executive Order
That’s not a neutral description of conduct, it’s a condemnation of a specific message: contempt for America. When the government punishes symbolic acts because of the ideas they convey, that’s the textbook definition of a content-based regulation, even if that message is opposition to American values or the government.
The Court addressed this exact issue in Texas v. Johnson, holding that:
“The restriction on Johnson’s political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others.”
— citing Boos v. Barry, applying “the most exacting scrutiny” to such restrictions.
In short, you cannot target a symbolic act because of the meaning behind it and still claim to be content-neutral. If the executive order simply attempted to regulate all American flag disposals federally, rather than those burnt in protest, then it might be justified as content-neutral. However, since it, by its language, targets flag burnings in the context of demonstrations, it necessarily targets speech by the burner’s intended message.
Conclusion: Lawful Patriotism Doesn’t Require Censorship
The Trump executive order may have symbolic appeal, but its constitutional basis is razor-thin. The First Amendment does not yield blindly to patriotism, nor should it. To preserve the freedom our flag represents, we must accept—even defend—the right to desecrate it in protest.
What this executive order ultimately signals is a willingness to conflate criminal conduct with symbolic dissent, and to use the machinery of government to punish ideas, not actions. That should concern every American, regardless of political affiliation.
At Maine Policy Institute, we believe deeply in the liberties enshrined in the Constitution. While no one enjoys seeing the flag burned, criminalizing symbolic speech risks something far worse: losing the freedom the flag stands for.
Let’s leave the final word to the 1989 Supreme Court opinion in Texas v. Johnson:
“We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” – The majority opinion, authored by Justice Brennan, which Justices Marshall, Blackmun, Scalia, and Kennedy joined.