Trump's Edict Banning Flag Burning Is Performative and Illegal But that Doesn't Mean it Can't be Used to Harass Americans

Aug 25, 2025

No law in the United States bans burning the American flag. State laws that did so were struck down by the Supreme Court in 1989 as a violation of freedom of speech. A federal ban was struck down for the same reason in 1990. Yet Donald Trump is pretending to ban flag-burning by executive order.

The New York Times reports:

Signing the order in the Oval Office, Mr. Trump delivered tough talk about punishing those who desecrate the national symbol: “If you burn a flag, you get one year in jail, no early exits, no nothing,” he declared.
But there was a significant disconnect between the president’s words and the order he signed. The text says nothing about putting people in prison for a year. Instead, it acknowledges that the Supreme Court in 1989 ruled that flag burning is a form of political expression protected by the First Amendment….
In his order, Mr. Trump instructed Attorney General Pam Bondi to look for ways to prosecute people who desecrate the national symbol “to the fullest extent permissible under any available legal authority” without running afoul of the First Amendment. The order offers some ideas: prosecuting “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights.”

Banning flag-burning may be a pretense, but Trump has made a career of turning pretense into reality. Thus, an army veteran who burned the flag as a deliberate act of protest against this executive order was promptly arrested outside the White House.

Trump cannot ban flag-burning by executive order. What he can do is to give his Attorney General a mandate to legally harass people for constitutionally protected acts of protest—which in itself is a dangerous precedent.

The Executive Watch is a project of the Institute for the Study of Modern Authoritarianism, and its flagship publication The UnPopulist, to track in an ongoing way the abuses of the power of the American presidency. It sorts these abuses into five categories: Personal Grift, Political Corruption, Presidential Retribution, Power Consolidation, and Policy Illegality. Click the category of interest to get an overview of all the abuses under it.

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