President Donald Trump signed an executive order Monday directing the Justice Department to prosecute individuals who burn or desecrate the American flag, escalating a legal battle over a form of protest the U.S. Supreme Court has ruled is protected by the First Amendment.
"If you burn a flag, you get one year in jail, no early exits, no nothing," Trump said in the Oval Office as he signed the order. The directive instructs the attorney general to "vigorously prosecute" flag desecration cases, refer them to state and local authorities when possible, and seek litigation to clarify the scope of constitutional protections.
The order also mandates immigration consequences for noncitizens, requiring agencies to terminate visas, residency permits, and naturalization proceedings for foreign nationals found guilty of desecrating the flag. "The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life," the order said. "Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation."
The Trump administration framed the measure around exceptions to free-speech protections. It argued that desecration which incites "imminent lawless action" or qualifies as "fighting words" could still be prosecuted. The Supreme Court's landmark 1989 decision in Texas v. Johnson held by a 5-4 vote that burning the flag is legitimate political expression. The late Justice Antonin Scalia, a conservative jurist often praised by Trump, sided with the majority in that case.
Trump criticized that ruling on Monday, calling it a "very sad court." He added, "I guess it was a 5 to 4 decision. They called it freedom of speech. But there's another reason, which is perhaps much more important. It's called death."
The president asserted that flag burning "incites riots at levels we've never seen before," saying that "the area goes crazy" when it occurs. "If you have hundreds of people, they go crazy," he said.
The order emphasized that burning the flag "may incite violence and riot" and instructed the Justice Department to pursue criminal and civil laws "to the fullest extent possible" when harm is caused beyond First Amendment considerations. Trump said his administration would not allow early release for those convicted.
