Donald Trump has just signed an official executive order. This order instructs federal prosecutors to bring criminal penalties against any individual who sets fire to American flags in connection to protests. This legislation would be an attack on what Trump calls a growing trend of flag desecration. He thinks this trend chips away at the national pride and respect for the United States of America.
The executive order also directs U.S. Attorney General Pam Bondi to examine cases of flag burning. It presents an interesting question of prosecution — whether these cases can be prosecuted based on current laws such as disturbing the peace or violating environmental regulations. While Trump stated, “you burn a flag, you get one year in jail,” the executive order does not specify any potential jail sentences.
Flag burning continues to be a divisive issue in American jurisprudence. The Supreme Court ruled in the landmark 1989 case Texas v. Johnson that flag desecration is protected political expression under the First Amendment. This ruling struck down flag-burning laws in all but 2 states. It reinforced a strong principle that people have the right to burn flags in a political protest.
Although this is the established judicial precedent, Trump has for years supported burning the American flag as a crime. He reiterated his stance during a recent signing event, claiming, “All over the country they’re burning flags.” He lamented that adding any sort of environmental merit makes activist opposition a “very sad court” ruling. He even called for penalties for anyone who should dare to desecrate the flag. The charges for offenders were also quite severe, including the possibility of indefinite loss of citizenship or up to one year imprisonment.
Based on what we can find, public opinion does seem to match up with Trump’s stance on this one. An updated, national YouGov survey from September 2023 shows that Americans have no shortage of strong feelings. The numbers are staggering 59% think that burning an American flag while protesting is “always unacceptable.” In fact, a 2020 YouGov poll found that nearly half of Americans favor banning flag destruction. By contrast, only about one-in-three thinks that it is allowed.
This new executive order is yet another effort from Trump to recover from the SCOTUS ruling. His administration has made a habit of overstating the value of national treasures. If perpetrated by Congress, this move would indicate a revived commitment by Congress to enact special legislative penalties against flag desecration.