Is It Illegal To Burn The American Flag? Here’s What Past Rulings Say

Key Facts

What Has The Supreme Court Said About This?

In 1984, Gregory Lee Johnson burned an American flag outside Dallas City Hall during a protest of the Republican National Convention. He was charged with violating a Texas law for desecration of a venerated object. “No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning,” the Supreme Court noted in its ruling. Johnson was convicted and sentenced to a year in prison with a $2,000 fine, but the Texas Court of Criminal Appeals reversed this decision. Prosecutors appealed the case further to the Supreme Court, which ruled in favor of Johnson in 1989. The high court found Johnson’s actions were “expressive conduct protected by the First Amendment,” and the fact that he did so at the RNC protest made the political nature of his protest “both intentional and overwhelmingly apparent.” Trump’s executive order noted the Supreme Court’s ruling does not protect speech that could “incite imminent lawless action” or amount to “fighting words,” and the Texas Court of Criminal Appeals found that in Johnson’s case no “breach of peace” occurred when he ignited the flag. The Supreme Court also noted “no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag,” and in a footnote said the protester “was prosecuted only for flag desecration — not for trespass, disorderly conduct, or arson.”

How Else Is The Order Targeting Flag Burning?

Monday’s executive order also instructs Attorney General Pam Bondi to refer cases of flag burning to state and local jurisdictions when they could potentially violate local laws. It also instructs the attorney general to “pursue litigation to clarify the scope of the First Amendment exceptions”—possibly indicating the administration would try to find a way to bring another case related to flag burning before the Supreme Court, which has a 6-3 conservative majority. Additionally, it instructs the secretary of state and homeland security secretary to revoke visas, terminate naturalization processes and remove immigrants who burn flags.

What Did Past Conservative Justices Say About The Decision?

Conservative justices Anthony Kennedy and Antonin Scalia joined the majority to rule in favor of Johnson, with Kennedy writing a concurring opinion. “The hard fact is that sometimes we must make decisions we do not like,” Kennedy wrote in a concurrence with the majority. “The fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution,” Kennedy added. “So I agree with the Court that he must go free.” Scalia, considered one of the most conservative justices on the high court during his 30-year tenure, consistently defended his decision until his death in 2016. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he told a crowd at an event in Philadelphia in 2015. “But I am not a king.”

Chief Critics

Free speech organizations quickly denounced Trump’s executive order, with the American Civil Liberties Union stating in a post on social media “President Trump can’t repeal the First Amendment by executive order.” “You don’t have to like flag burning,” Bob Corn-Revere, the chief counsel for the Foundation for Individual Rights and Expression, said in a statement from the organization. “You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.” Some notable conservatives have also spoken out against the order—Rep. Thomas Massie, R-Ky., said flag burning is protected by the First Amendment and “neither Congress nor the President nor a Judge can make it illegal.”

Key Background

Despite the Supreme Court decision, Trump has spent years complaining about flag burning and promising punishment for flag burners. Shortly after winning the 2016 election, Trump caused a brief uproar after tweeting “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” He came back to the issue while running for reelection in 2020, this time while the George Floyd protests raged across the country. In a call with governors later obtained by CNN, Trump said “we have a different court and I think that it’s time that we review that again.” Trump also brought up the subject during his 2024 campaign, reacting after scenes of protesters burning flags at a protest against a speech Israeli Prime Minister Benjamin Netanyahu gave before Congress. “People will say ‘oh it’s unconstitutional,’ those are stupid people,” Trump said while calling into Fox and Friends. “Those are stupid people that say that. We have to work in Congress to get a one-year jail sentence” for people who burn the flag, Trump added.