The Criminalization of Dissent

On August 25th, 2025, President Trump signed an executive order directing the Justice Department to start pressing criminal charges for those who burn the U.S. flag, a vow of "one year in jail" for those who do so, and deportation consequences for non-citizens. Although a clear violation of the First Amendment (as the Supreme Court has decided), the political balance of the court has meant that it is doubtful whether the order will be overturned.

In Texas v. Johnson (1989), the court held that burning the flag as an act of political protest is protected as symbolic speech, and that state and federal governments could not prosecute such political messaging. After all, our nation was founded on the right to free speech against our government. This decision, upheld a year later in United States v. Eichman has been essential to protecting our right to free speech. Trump's order threatens to strike down decades of precedent and convert political expression into a criminal offense. With the current 6-3 conservative precedent in the Supreme Court, precedent is likely to be rewritten for the administration's goals.

Looking at the text of the order shows Trump's intentions. It directs immigration agencies to deport non-citizens(including lawful residents) and pursue convictions for "anti-American sentiment." Although the administration has defended its actions as constitutional by saying that it is through "well-established, non-speech-targeting statutes," Trump's own unconditional statements of "If you burn a flag, you get one year in jail," show that the intention is just to punish the message he disagrees with, not to implicate other crimes when they coincide with crimes.

The immediate enforcement of this order showed the goals of the administration. Two days after the order passed, an Army veteran burned a flag in front of the White House. He was detained, but the pretext from prosecutors was that he was "lighting a fire on federal parkland(keep in mind, he was in front of the White House)." This is unprecedented, and protestors in the past have burned American flags in front of the White House, without facing prosecution. The route of the administration seems to be to prosecute for any possible minute relationship, to have plausible deniability. The White House situates its prosecution in property damage or riot statutes, but only does so against speech with underlying messages that they disagree with.

Advocates of the executive order point to previous free-speech exceptions, such as "imminent lawless action" under Brandenburg v. Ohio or "fighting words" under Chaplinsky v. New Hampshire. However, neither is a comfortable fit for flag burning as a political protest, as courts have only found this exception to be met by direct violent confrontation.

Although he hasn't acted on it until recently, Trump has long planned to ban flag discretion. In 2016, he said that flag burners should "lose citizenship or [spend] a year in jail." In 2019, he backed a proposed constitutional amendment by Sens. Daines and Cramer to nationally criminalize flag burning. This year was when he finally took action

At the moment, many states still have flag-desecration statutes in their books, book they are unenforceable after the court rulings in Johnson and Eichman. In fact, forty of such laws are still in state codes across the nation. For example, both the Confederate and American flags are "illegal" to burn in Florida. One Supreme Court ruling could suddenly make this enforceable. The executive order stands to legitimize these statutes and allows for greater potential for enforcement.

Like many of Trump's executive orders, civil liberty groups have quickly responded. For example, the Foundation for Individual Rights and Expression has reiterated that flag burning is constitutionally protected, and a lawsuit from groups like the ACLU is likely ot come. As legal commentators have stressed, even if arrests rise, successful prosecutions will be hard unless the government can prove harm wholly apart from the constitutional expression. This has been seen before, when Congress passed the Flag Protection Act in 1989, the immediate result was more flag burnings as a form of protest and swift invalidation by the Supreme Court, not deterrence. It remains yet to be seen if the same will occur, as more people are being prosecuted for protesting, and the Supreme Court is more aligned with the president.

The stakes of attacks on free speech are larger than the symbol. The flag in American society has stood for protected protest, even when scorned by dissent. The First Amendment was meant not to shield popular speech, but to protect the unpopular. No matter how patriotic you are, the greatest form of patriotism would be to uphold the rule of law outlined in the Constitution.