Ordered Prosecution of Flag Burning — Protected Speech Since 1989
Trump signed an order directing prosecution of flag burning and deportation of noncitizen flag burners — despite two Supreme Court rulings (including one joined by Scalia) confirming flag burning is protected speech. The DOJ's test case collapsed.
On August 25, 2025, Trump signed an executive order titled "Prosecuting Burning of the American Flag," directing the Attorney General to prioritize enforcement against flag desecration and to "pursue litigation to clarify the scope of the First Amendment exceptions" — signaling an intent to overturn settled law.
Flag burning has been constitutionally protected speech since Texas v. Johnson (1989), where the Supreme Court ruled 5-4 that flag burning is symbolic speech protected by the First Amendment. The majority included conservative icon Justice Antonin Scalia, who later said: "As I understand the First Amendment, it guarantees the right to express contempt for the government." Congress tried to criminalize it anyway; the Court struck that law down too in United States v. Eichman (1990).
Trump declared: "If you burn a flag, you get one year in jail." He cannot create criminal penalties by executive order for constitutionally protected conduct.
The order also directed the revocation of visas and deportation of noncitizens who burn flags — using immigration enforcement as a workaround for First Amendment protections that apply to all persons on U.S. soil.
The DOJ's test case collapsed:
- Army veteran Jay Carey (who served in Iraq, Bosnia, and Afghanistan) deliberately burned a flag in Lafayette Square on the same day to test the order
- He was arrested and charged with two misdemeanors (fire code violations, not flag burning itself)
- Judge Boasberg ruled Carey could proceed with a vindictive prosecution inquiry — examining whether the charges were pretext to punish protected speech
- On March 14, 2026, the DOJ dropped all charges — strategically timed before a deadline that would have required disclosure of internal communications about the executive order
Carey's attorney called it "a very significant victory for the First Amendment." The ACLU stated: "President Trump can't repeal the First Amendment by executive order." Constitutional scholars across the political spectrum — including the conservative American Enterprise Institute — noted this was a solution in search of a problem, given that flag burning is extremely rare.