'Unconstitutional': Trump under fire for pushing jail time for flag burning

25 August

U.S. President Donald Trump holds up an executive order after signing it in the Oval Office at the White House in Washington, D.C., U.S., August 25, 2025. REUTERS/Jonathan Ernst TPX IMAGES OF THE DAY

In 1989, the U.S. Supreme Court ruled that burning an American flag is protected free speech under the First Amendment, but President Donald Trump on Monday signed an executive order that he said mandates that flag burners be prosecuted and ordered to spend one year behind bars with no possibility of parole.

Under the Constitution, presidents lack the authority to overrule the Supreme Court or mandate punishments.

The executive order, according to a Trump administration official, directs prosecution in cases that “wouldn’t fall afoul of the First Amendment.”

The order is titled, “Prosecuting Burning of the American Flag.”

“The order would not attempt to criminalize burning the American flag,” Axios reported, “but would direct Attorney General Pam Bondi to review cases where the flag has been set ablaze and determine what charges could be brought under existing laws.”

It also orders the Attorney General to “prosecute people who ‘desecrate’ the American flag and to detain and remove immigrants who have been accused of such behavior,” according to The Washington Post. And it orders the Attorney General to find a case to challenge the 36-year-old 5-4 Supreme Court precedent.

Last year, a video appeared to show Trump signing an American flag.

“This is very important,” President Trump declared in an Oval Office event surrounded by top advisors and Cabinet officials, including Attorney General Pam Bondi.

“Flag burning, all over the country, they’re burning flags,” Trump claimed. “All over the world, they burn the American flag, and as you know, through a very sad court, I guess there was a five to four decision. They called it freedom of speech, but there’s another reason, which is perhaps much more important.”

“It’s called death, ’cause what happens when you burn a flag is the area goes — it’s crazy. If you have hundreds of people, they go crazy. You can do other things, you can burn this piece of paper, you can. And it’s. But when you burn the American flag, it incites riots,” Trump claimed. “At levels that we’ve never seen before, people go crazy. In a way, both ways, there are some that are going crazy for doing it. There are others that are angry, angry about them doing it.”

The President told reporters, “the penalty is going to be, if you burn a flag, you get one year in jail, no early exits, no nothing. You get one year in jail. If you burn a flag, you get. And what it does is incite to riot.”

“You get one year in jail, and it goes on your record,” the President claimed. “And you will see flag burning stopping immediately, just like when I signed the Statue and Monument Act. Ten years in jail, have you hurt any of our beautiful monuments? Everybody left town. They were gone. Never had a problem after that. It’s pretty amazing. We stopped it.”

The President, without offering evidence, also claimed that some flag burners are simply “paid agitators, they’re paid by the radical left to do it. You talk to these people, they don’t even know half of them, don’t even know what they’re doing.”

Critics blasted the President.

“The Supreme Court ruled decades ago that burning an American flag is protected free speech,” wrote attorney Aaron Reichlin-Melnick. “Any prosecution that is the result of this executive order is by definition unconstitutional.”

The Bulwark’s Sonny Bunch pointed to this 2015 quote form the late Supreme Court Justice Antonin Scalia:

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”

“This flag burning executive order has it all,” wrote Nico Perrino, executive vice president of The Foundation for Individual Rights and Expression (FIRE). “Symbolic expression is ‘violence’ against the nation. Heckler’s veto justifications for censorship. Misinterpretation/narrowing of the Brandenburg incitement standard. A revitalization of the ‘fighting words’ doctrine.”

In a statement, FIRE wrote: “President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t. Flag burning as a form of political protest is protected by the First Amendment. That’s nothing new.”

Constitutional law professor Anthony Michael Kreis wrote: “Patently unconstitutional. 18 USC §700 has been void since Tex. v. Johnson (1989) and U.S. v. Eichman (1990) under the 1A. Second, there is no federal authority for an anti-flag-burning statute. The national government does not have a general police power.”

Watch the video below or at this link.

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