Trump’s challenge with his flag burning order
The First Amendment to the United States Constitution is widely hailed as one of the most powerful pieces of legislation ever enacted, protecting core freedoms of speech, religion, press, assembly, and petition. Recent political events, such as President Trump’s executive order targeting American flag burning, have reignited national debate about the scope and meaning of this foundational right, testing its boundaries against issues of patriotism, protest, and the limits of government regulation.
At the signing, Trump declared: "If you burn a flag, you get one year in jail, no early exits, no nothing," reported Reuters, signaling a hard stance on the issue. However, legal experts and civil liberties advocates quickly pointed out that executive orders cannot supersede constitutional protections, nor can they rewrite the First Amendment.
Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, stated: “President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t,” as mentioned on its website.
Senator Josh Hawley introduced legislation to stiffen penalties for flag desecration linked to federal offenses, further revealing a legislative push that runs up against past Supreme Court rulings.
Justice Antonin Scalia, a noted conservative voice, once acknowledged his personal opposition to flag burning, yet emphasized: “We have a First Amendment, which says that the right of free speech shall not be abridged—and it is addressed in particular to speech critical of the government,” reported Axios.
The First Amendment is often labeled the “most powerful” because it protects the essential freedoms that underpin American democracy: speech, religion, press, assembly, and petition. Its broad wording and strong legal foundation have inspired global movements for civil rights and continue to influence law and culture in the US.
Q. Does the executive order criminalize all flag burning?
No. The order does not make flag burning a crime; rather, it instructs law enforcement to focus on instances where flag burning involves other illegal acts (like violence or property crime) or violates specific regulations (like burn bans). The Supreme Court’s decisions prevent an outright ban on the act itself.
Q. Can a president alter the First Amendment by executive order?
No. Presidents cannot change the Constitution or the scope of First Amendment protections by executive order alone. Only constitutional amendments or new Supreme Court rulings can redefine the scope of those liberties.
Q. What are the limits of protected speech under the First Amendment?
While the First Amendment is broad, it does not protect all types of speech. Categories like incitement to violence, true threats, and some forms of obscenity are not covered. However, political expression—including symbolic acts like flag burning—remains robustly protected unless directly tied to illegal conduct.
The First Amendment
The First Amendment, ratified in 1791 as part of the Bill of Rights, declares: “Congress shall make no law... abridging the freedom of speech, or of the press...”. This succinct yet profound declaration forms the backbone of American democracy, ensuring citizens the liberty to express dissent, criticize the government, and participate in peaceful protest. Supreme Court interpretations have consistently reinforced its centrality, labeling it a "bedrock principle" that protects even controversial speech such as flag burning.Flag burning as protected expression
The issue of flag burning reached the Supreme Court in the landmark 1989 case Texas v. Johnson, where the Court ruled that burning the American flag is a form of symbolic speech shielded by the First Amendment. Justice William Brennan, writing for the majority, asserted: “The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.” This protection was reaffirmed in 1990 when the Court struck down a federal law criminalizing flag desecration, further cementing flag burning as protected conduct.President Trump’s 2025 executive order
On August 25, 2025, President Trump signed an executive order responding to recent incidents of flag burning at political protests. The order does not directly criminalize flag burning—something the Supreme Court has deemed unconstitutional—but instead directs the Attorney General to prioritize enforcement against violations of existing laws in cases involving flag desecration. This may include prosecution for crimes like violence, property damage, or open burning violations, if linked to flag-related protests.At the signing, Trump declared: "If you burn a flag, you get one year in jail, no early exits, no nothing," reported Reuters, signaling a hard stance on the issue. However, legal experts and civil liberties advocates quickly pointed out that executive orders cannot supersede constitutional protections, nor can they rewrite the First Amendment.
Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, stated: “President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t,” as mentioned on its website.
Legal and political reactions
The order instructs federal agencies to refer potential criminal cases to state or local authorities if non-First Amendment issues—such as burning restrictions or violence—are present. This approach aims to thread the needle between enforcing order and respecting constitutional speech rights. Still, critics argue the order sets a troubling precedent and risks stifling protected protest.Senator Josh Hawley introduced legislation to stiffen penalties for flag desecration linked to federal offenses, further revealing a legislative push that runs up against past Supreme Court rulings.
Justice Antonin Scalia, a noted conservative voice, once acknowledged his personal opposition to flag burning, yet emphasized: “We have a First Amendment, which says that the right of free speech shall not be abridged—and it is addressed in particular to speech critical of the government,” reported Axios.
Frequently Asked Questions
Q. Why is the First Amendment considered the ‘most powerful’?The First Amendment is often labeled the “most powerful” because it protects the essential freedoms that underpin American democracy: speech, religion, press, assembly, and petition. Its broad wording and strong legal foundation have inspired global movements for civil rights and continue to influence law and culture in the US.
Q. Does the executive order criminalize all flag burning?
No. The order does not make flag burning a crime; rather, it instructs law enforcement to focus on instances where flag burning involves other illegal acts (like violence or property crime) or violates specific regulations (like burn bans). The Supreme Court’s decisions prevent an outright ban on the act itself.
Q. Can a president alter the First Amendment by executive order?
No. Presidents cannot change the Constitution or the scope of First Amendment protections by executive order alone. Only constitutional amendments or new Supreme Court rulings can redefine the scope of those liberties.
Q. What are the limits of protected speech under the First Amendment?
While the First Amendment is broad, it does not protect all types of speech. Categories like incitement to violence, true threats, and some forms of obscenity are not covered. However, political expression—including symbolic acts like flag burning—remains robustly protected unless directly tied to illegal conduct.
