Trump Threatens Jail Time for Flag Burning as First Amendment Crumbles

[Celerity]

President Trump on Monday signed an executive order instructing the U.S. attorney general to pursue criminal charges against anyone caught burning the American flag, blatantly violating basic freedom of speech and expression laws.

https://newrepublic.com/post/199538/trump-jail-time-ban-flag-burning-first-amendment

https://archive.ph/fqmIH



“Flag burning. All over the country they’re burning flags. All over the world they burn the American flag,” Trump said at his press conference, where he signed another executive order revoking cashless bail in Washington, D.C. “What happens when you burn a flag is, the area goes crazy. If you have hundreds of people they go crazy…. When you burn the American flag it incites riots at levels that we’ve never seen before.”

“If you burn a flag, you get one year in jail, no early exits, no nothing. You get one year in jail,” Trump said. “You don’t get 10 years, you don’t get one month, you get one year in jail. And it goes on your record. And you will see flag burning stopping immediately.”

The president claimed the Department of Justice would “investigate instances of flag burning” in situations where “prosecution wouldn’t fall afoul to the First Amendment.” But the order does exactly that. In 1989, the Supreme Court ruled 5-4 that flag burning is a protected right under the Constitution. Trump also made unsubstantiated claims that flag burning is a rampant practice in America right now (it is not) and that anyone doing it is being paid by the “radical left.”

It’s extremely unclear how exactly the administration can throw American citizens in jail for burning a piece of fabric without “running afoul” of the Constitution. This is a move that would be relentlessly vilified if someone like Russian President Vladimir Putin or North Korean leader Kim Jong Un did it. Instead, Trump is using this despotic tactic to crack down on protesters and further push his dark MAGA agenda.

snip

[johnnyfins]

1. "at levels that we've never seen before"

That is one of TSFs bullshit markers. He cant help himself. LIAR. No one is burning flags.

[Walleye]

7. Except January 6, 2021?

All these lives being threatened by flagburning, excuse me, I mean, wildfires and floods. As far as I know, no one has died or rioted on account of a burning flag. The Magas disrespect the flag all the time, but that’s OK because they say they are patriots while they’re doing it. And there are paper, napkins, and paper plates with flags printed on them. Are they given a decent burial?

[underpants]

2. (Looks out window, sees no flags burning) My Gawd! It worked!!!

“If you burn a flag, you get one year in jail, no early exits, no nothing. You get one year in jail,” Trump said. “You don’t get 10 years, you don’t get one month, you get one year in jail. And it goes on your record. And you will see flag burning stopping immediately.”

I’m glad he pointed out that this jail time will go in your record. 🙄

[C_U_L8R]

3. Besides, it's more satisfying to burn Trump flags

If one were to partake in flag burning... which no one is.

[Ping Tung]

4. The World is my country, all mankind are my brethren, and to do good is my religion. Thomas Paine

“Flags are bits of colored cloth that governments use first to shrink-wrap people’s minds & then as ceremonial shrouds to bury the dead.”

― Arundhati Roy

[onenote]

5. Can I burn these flags?

?year=2016&h=1688&w=3000&s=d42947b28b27d8b1c214d8e7a80b4fe9fdf05a9fd30517719fd4610e46d3bca8&k=ZQJBKqZ0VN&tw=1

[Grins]

6. Mr. Scalia...? Time to pop out of your grave for a moment....NM

[UpInArms]

8. Texas v. Johnson

Texas v. Johnson, 491 U.S. 397 (1989), is a landmark decision by the Supreme Court of the United States in which the Court held, 5–4, that burning the Flag of the United States was protected speech under the First Amendment to the U.S. Constitution, as doing so counts as symbolic speech and political speech.

In the case, activist Gregory Lee Johnson was convicted for burning an American flag during a protest outside the 1984 Republican National Convention in Dallas, Texas, and was fined $2,000 and sentenced to one year in jail in accordance with Texas law. Justice William Brennan wrote for the five-justice majority that Johnson's flag burning was protected under the freedom of speech, and therefore the state could not censor Johnson nor punish him for his actions.

The ruling invalidated prohibitions on desecrating the American flag, which at the time were enforced in 48 of the 50 states. The ruling was unpopular with the general public and lawmakers, with President George H. W. Bush calling flag burning "dead wrong". The ruling was challenged by Congress, which passed the Flag Protection Act later that year, making flag desecration a federal crime. The law's constitutionality was contested before the Supreme Court, which again affirmed in United States v. Eichman (1990) that flag burning was a protected form of free speech and struck down the Flag Protection Act as violating the First Amendment. In the years following the ruling, Congress several times considered the Flag Desecration Amendment, which would have amended the Constitution to make flag burning illegal, but never passed it. The issue of flag burning remained controversial decades later, and it is still used as a form of protest.

More at:

https://en.wikipedia.org/wiki/Texas_v._Johnson

[tanyev]

9. "But Sir," I ask with tears in my eyes, "then what is the penalty for flag humping?"

[Celerity]

10. lock him up

[Torchlight]

11. Mr. trump: Focus on imaginary flag burnings and ignore that I rape underaged kids.

while Statler & Waldorf lecture that a Sternly Worded Letter is "just not doing enough!!" as seasoning.

[Volaris]

12. '...youll see flag burning stopping immediately..'

First of all: ya this nationwide rash of on-fire flags really needs the feds to put a stop to it...

Second, as much as this pansy bitch is in for showtunes, has this dumb fucker never heard of the Strisand Effect? I'd almost promise you, half the population of DC just ordered a flag FOR THE PURPOSE OF HAVING ONE TO SET ON FIRE, because fuck you Donnie THATS WHY.

[Blue Full Moon]

13. Now they need to go after them wearing it.

Flying it in tatters in front of their hovels.

[LetMyPeopleVote]

14. SCOTUS has ruled that flag burning is protected by the First Amendment twice

So, like, even if there hadn't been two Supreme Court decisons in living memory directly holding that flag burning is protected under the First Amendment, *new criminal laws cannot be created by executive order.*

— Jacob T. Levy (@jacobtlevy.bsky.social) 2025-08-25T15:25:49.191Z

[lame54]

15. Trump flags are more fun to burn

[UTUSN]

16. A MAGAt comment was that he is "trolling" the Court. More like, INCITING it to overthrow Constitution & Precedents.

He gives them an opening. This MAGAt Court only sees "Free Speech" in terms of *cash*/Citizens United. As for Precedent, viz., Roe.

[jmowreader]

17. How many years do you get for burning pictures of Trump?

That’s what we should be burning.

[Oeditpus Rex]

18. I've long thought flag-burning was a silly protest

because we're allowed to do it

Now, if it were made illegal, then it'd be a righteous protest.

[whopis01]

19. Yeah - the converse of that applies as well

With no potential punishment, burning it takes less conviction.

But with a punishment, choosing to not burn it may not be a sign of respect - it may just be fear of punishment.

[Oeditpus Rex]

21. Yeah, there's that

Guess it depends on the courage of one's convictions.

[LetMyPeopleVote]

20. MaddowBlog-The problem(s) with Trump's radical new executive order on flag burning

In this country, a presidential executive order cannot override a Supreme Court ruling. On flag burning, Trump doesn't appear to care.

Link to tweet

https://www.msnbc.com/rachel-maddow-show/maddowblog/problems-trumps-radical-new-executive-order-flag-burning-rcna227025

A few weeks after winning the 2016 presidential election, Donald Trump said he was prepared to take American citizenship away from those who burn the American flag, insisting there had to be meaningful “consequences” for such protests, even if the U.S. Supreme Court has already ruled that this is protected speech under the First Amendment.....

In his second term, however, he has apparently decided to take action — or something resembling action. NBC News reported:

Trump signed [an] executive order on Monday aimed at prosecuting people who ‘desecrate’ the American flag, a third fact sheet said. That order, first reported by Fox News, directs Bondi to ‘vigorously prosecute those who violate our laws in ways that involve desecrating the flag, and to pursue litigation to clarify the scope of First Amendment in this area.’

“What the penalty is going to be, if you burn a flag, you get one year in jail — no early exits, no nothing,” the president said, adding: “You will see flag burning stop immediately.”

Trump signs an executive order: "If you burn a flag, you get one year in jail."

— Aaron Rupar (@atrupar.com) 2025-08-25T15:11:52.954Z

......In this country, whether Trump likes it or not, a presidential executive order cannot override a Supreme Court ruling. In this country, whether Trump likes it or not, a president cannot create new criminal statutes — measures that would literally imprison Americans — without Congress.

As The New York Times’ Jamelle Bouie wrote in response to the Republican’s new order, “He literally thinks he is a king. ... This entire media blitz for when he signs executive orders is meant to create the impression that they are royal decrees.”

To the extent that the administration tries to implement this policy, litigation would be inevitable. Whether Trump assumes that the far-right high court would rule differently on the underlying issue than it did 35 years ago is unclear. Watch this space.

[LetMyPeopleVote]

22. Deadline: Legal Blog--Trump wants to prosecute flag burners. The Supreme Court has already said that's illegal

The president said it was a “very sad court” that previously rejected flag-burning prosecutions on First Amendment grounds.

Link to tweet

https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-flag-burning-prosecute-executive-order-supreme-court-rcna227012

During the Oval Office ceremony, the president lamented that a “very sad court” — “I guess it was a 5-4 decision,” he said — “they called it freedom of speech.”

He appeared to be referring to long-standing Supreme Court precedent on the subject. In a 5-4 decision joined by Scalia, the court said in 1989’s Texas v. Johnson: “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 or disagreeable.”

The court sided with Gregory Lee Johnson, who burned the flag in 1984 in Dallas during the Republican National Convention. The majority recounted that Johnson participated in a political protest called the “Republican War Chest Tour” against the Reagan administration and “certain Dallas-based corporations.” The majority said Johnson was convicted for “expressive conduct” and that he “did not threaten to disturb the peace.” It said the state’s interest in “preserving the flag as a symbol of nationhood and national unity” couldn’t justify his prosecution......

With that background in mind, let’s take a closer look at the new executive order.

While its performative political aspect is clear, a notable legal aspect is the degree to which it acknowledges the limits of Trump’s power in this area. Though the order instructs the attorney general to prioritize law enforcement actions against flag-burning, it caveats these instructions by saying to do so in ways “consistent with the First Amendment” and “to the maximum extent permitted by the Constitution.”

In other words: Do everything you can, except where you can’t. It’s unclear where that leaves any enforcement actions in reality.

So, the order’s legal effect is fairly limited by its own terms, putting aside whatever chilling practical effect it might have on people’s conduct — something that can’t be ignored these days.

By its own terms, trump's latest executive order is subject to the First Amendment. This is simply a stunt by trump that has no real legal effect.