5 months ago
A new executive order signed by President Donald Trump Monday will allow for the prosecution of people involved in the burning of the American flag. This is in direct opposition to a precedent set by the Supreme Court in the Texas vs. Johnson case in 1989 that deemed the action an act of "symbolic speech."
The executive order would create a penalty of one year in jail, Trump said during a press conference in the Oval Office.
Newsweek reached out to the Supreme Court for comment via email Monday.
Why It Matters
The executive order signed by Trump Monday is in opposition with a legal precedent set by the Supreme Court in 1989 when it reached a 5-4 decision in Texas vs. Johnson. Justice William Brennan wrote that the government could not prohibit expressive conduct merely because society found it offensive.
Should the order move forward, arrests for burning the American flag would face possible legal challenges and could warrant a revisiting of the precedent.
What To Know
Trump acknowledged that while the action was protected by the court, burning the flag was an open door to violence.
"When you burn the American flag, it incites riots at levels that we've never seen before," Trump said.
The executive order regarding the flag came Monday amid a slew of others signed by the president during a press conference.
The order says that those who burn an American flag, whether in the U.S. or other countries, will be subject to prosecution and penalties.
In the order, penalties were laid out, including those for non-citizens that could range from the revocation of visas or immigration benefits, and even the possibility of removal from the country.
Texas vs. Johnson: the Background
The case came to the Supreme Court after Gregory Lee Johnson burned an American flag to protest the policies of President Ronald Reagan outside of the 1984 Republican National Convention in Dallas.
Johnson was convicted of violating a Texas law aimed to prevent the desecration of venerated objects such as the American flag. He appealed the case under protection of the First Amendment, with the Supreme Court ruling in his favor.
Did Johnson Go to Jail for Burning the Flag?
Johnson was arrested, charged and convicted in the case. He was sentenced to one year in prison and ordered to pay a $2,000 fine.
What People Are Saying
President Donald Trump said while signing the order: "They burn the American flag. They call it freedom of speech. When you burn a flag, the area goes crazy. If you have hundreds of people, they go crazy. You can do other things…but when you burn the American flag, it incites riots at levels we've never seen before."
The executive order reads in part: "Notwithstanding the Supreme Court's rulings on First Amendment protections, the court has never held that American flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to 'fighting words' is constitutionally protected."
The U.S. Courts' educational summary cited the majority opinion in Texas vs. Johnson, in which Justice William Brennan wrote: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive."
What Happens Next
Any enforcement effort would be expected to prompt immediate litigation challenging the order on First Amendment grounds, and courts would have to reconcile the order with the Supreme Court precedent.
Update 8/25/25 12:51 p.m. ET. This story has been updated to include more information.
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