In the advertising world, there is an old adage that there are times when you take a pitch and “run it up the flagpole and see who salutes.” That expression came to mind yesterday when President Donald Trump signed an order to punish flag burning. The President may be hoping that the Supreme Court might salute and reverse long-standing precedent declaring flag burning to be protected speech under the First Amendment. If so, he is likely to be disappointed. The proposed prosecutions would be unconstitutional and, absent an unlikely major reversal of prior precedent by the Court, flag burning will remain a protected form of free speech.
The Supreme Court has repeatedly, and correctly, declared flag desecration to be protected speech in such cases as Texas v. Johnson (1989) and United States v. Eichman (1990). The order seeks to evade those cases by focusing on acts that violate “applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” When such violations occur (such as burning material within public lands or buildings), federal prosecutors would “prioritize the enforcement of … criminal and civil laws” as to “destruction of property laws” or “open burning restrictions.”
The problem is that, while the precursor is content-neutral, the enhancement of the penalty by a year in jail is not. The whole point of the order is that it is content-based and thus unconstitutional.
The order makes the content-based criteria obvious by declaring flag burning as “uniquely offensive and provocative” of “contempt, hostility, and violence against our Nation—the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.”
The test of free speech principles is your willingness to defend speech that you find offensive or grotesque. For most of us, there are few acts more offensive than the burning of the American flag. That is precisely why extremists use those symbols to vent their rage.
That is the line that has been held by the Supreme Court, including conservative icons like Justice Antonin Scalia. Scalia was the fifth vote in the Johnson decision that upheld flag burning in Texas. The majority opinion, written by Justice William Brennan, declared “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Despite the objections from many, Scalia later again voted against a federal law that banned flag burning in Eichman.
Scalia continued to defend his votes in public comments. He stressed that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
He later added:
Yes, if I were king, I would not allow people to go about burning the American flag. However, 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. I mean, that was the main kind of speech that tyrants would seek to suppress.
Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea – “I hate the government,” “the government is unjust,” whatever.
Conservatives have long opposed falsely claimed “neutral” laws that targeted particular viewpoints. For example, in 2014 in McCullen v. Coakley (2014), the Court considered such a challenge to a Massachusetts law establishing 35-foot buffer zone around abortion clinics barring speech activities. The Court unanimously found that it still violated the Constitution. Notably, Scalia only concurred in the judgment while disagreeing with the reasoning of Chief Justice John Roberts in the majority. Scalia viewed the law as content-based and felt that it should have been struck down under the highest burden of strict scrutiny.
Consider the implications of laws enhancing prosecution and penalties for selective speech. A liberal president could seek enhancements for views deemed hate speech or disinformation. Indeed, that is precisely the rationale used in other countries to selective prosecution of certain speech as “provocative,” “offensive,” or fueling violence.
In R.A.V. v. City of St. Paul (1992), the Court struck down an ordinance that focused on fighting words that angered people based on “race, color, creed, religion or gender” as well as specific Nazi symbols.
The majority opinion written by Scalia (and joined by Chief Justice William Rehnquist, Justice Anthony Kennedy, Justice David Souter and Justice Clarence Thomas) held that “the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”
As I discuss in my book, “The Indispensable Right: Free Speech in an Age of Rage, this type of prosecution has swept across Europe where free speech is in a free fall. Europeans yielded to the desire to target particular viewpoints and speech, a move that quickly snowballed into massive censureship and criminalization of speech. That included arresting people praying to themselves near abortion clinics and any protests deemed offensive to various groups. Indeed, some of the most anti-free speech figures in the United States such as Hillary Clinton have supported criminalizing flag burning with other limits on speech.
Flag burners can still be prosecuted for burning material on streets or public property. However, those laws must be neutrally written and neutrally applied. Otherwise, President Trump and others can seek a constitutional amendment to create an exception for flag burning under the First Amendment.
This is never an easy fight for free speech defenders. No one relishes being accused of defending flag burners. However, free speech often demands that we fight for the rights of those we despise or views that we deplore. We do not need the First Amendment to protect popular speech.
Of course, the new order is a fight that the President likely believes that he cannot lose. Even if he loses in court, he is seen as fighting a practice that remains uniformly unpopular with American voters. However, we should focus on defending the rights that define us as Americans. Free speech is the very right that distinguishes us from even close allies, the indispensable and quintessential American right. It would be a tragic irony to protect the symbol of our nation by destroying the core rights that the symbol represents.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of the best-selling “The Indispensable Right: Free Speech in an Age of Rage.”
This column appeared in Fox.com.
Just as the NY Governor and Legislature have inadvertently and repeatedly broadened citizen’s 2nd Amendment rights through their ill advised but challenged laws attempting to limit gun rights, so too will DJT inadvertently widen the rights of people to burn the US flag.
Burning a flag is an ACT and not actually SPEECH, so how, conceptually, does an ACT come under the protection of the Free Speech principle?
“Burning a flag is an ACT . . .”
As is all speech, written or oral.
If you doubt that, try expressing yourself without taking action.
Does that mean I can burn a trans flag or an LGBT flag?
What about a flag from any other country as well…
Yes
If you support law enforcement and strong national security, you should also support maximum freedom under the First Amendment.
If there are potentially dangerous persons, dangerous ideologies, or potentially dangerous extremists found in any group – do you want to know who they are? Is it more dangerous if they are invisible by operating underground?
Isn’t it better for national security to know who the unpatriotic flag-burners are? Which Americans support fascism? Which disloyal Americans supported a coup attempt on January 6? Which Americans support hate groups? Which Americans support foreign style dictatorship models of government ?
The First Amendment brings many of these potentially dangerous people, groups and ideologies into the daylight for all to see. It makes it easier for law enforcement and security agencies. If we silence First Amendment activity these people go underground, invisible to constitutionally oath-sworn officials trying to keep us safe.
This is called a “wedge” issue. When politicians want to divert attention away from themselves and divide Americans, they stir things up with flag burning. It’s a total waste of taxpayer dollars since the politician knows it’s settled law.
When I read the executive order (https://www.whitehouse.gov/presidential-actions/2025/08/prosecuting-burning-of-the-american-flag/) I took it as one that that set policy, in terms of prioritizing cases for investigation and prosecution, which I thought was discretionary and well within the President’s authority. Professor Turley seems to be asserting that US flag burning is a special case, emphasizing that, even if the act of burning one violates a general prohibition against burning something at a particular time, location, etc., the fact that it’s an American flag can’t be the factor determining the priority a particular violation receives. I suppose that means that burning a Palestinian or Israeli or Mexican or American flag in public in D.C., in violation of the local laws, all have to get the same discretionary treatment, even though we might care far more about some of the flags than others. I thought the First Amendment barred making laws or regulations that infringe upon our free speech rights, but did not restrict the discretionary authority of our elected constitutional officers in prioritizing enforcement actions when we overstep reasonable time and place restrictions. Didn’t the Biden DOJ have discretionary authority to decline to bring cases against the people protesting at the homes of our USSCT justices?
Of course, it is established that flag-burning is free speech, though it may also be arson, or violation of restrictions on burning. However, few readers recognize (though their comments demonstrate) Trump’s purpose and intent behind the E.O…to troll liberals/progressives into flag-burning, an act viewed unfavorably by the majority of Americans. It’s a vote-getter for the mid-terms.
*. Burning the flag was never a Constitutional question. There are rules for treatment of and disposal of American flags. It like the the case about disbursement of grants- claims court. It’s like Sabrina’s graffiti- see principle.
The EO is smart. Cite for offenses such as burning in a federal park, Improper disposal of American flag, other. SCOTUS bogged down with this BS from these lower courts. Restrict speech to speaking and listening, press to reading and writing.
I’m fatigued by the parades and protests. Get a room.
*. US Flag Code, Title 4. ^^^
*. ^^^ corrections
It–>it’s
Principle—> principal.
Blah blah.
THE POINT IS , it was always about arson. Take it to scotus for a reversal. Send back to States.
James Madison – Father of the Constitution – warned Americans that one of the greatest threats to the republic is the “Tyranny of the Majority”.
The “Tyranny of the Majority” is when the majority of voters ask their representatives in Congress and their government servants to violate the legal limits of the U.S. Constitution.
Madison was concerned self-serving and/or weak politicians would be highly disloyal to their oath of office, to uphold the constitutional rule of law and enforce laws.
For so-called “Originalists” the constitutional oath of office (loyalty oath for government officials) was part of the original 1789 Constitution, predating gun rights and property rights (added in 1791).
Every voter should be asking why any politician would initiate frivolous taxpayer-financed litigation over an issue with over 200 years of case law and constitutional precedent. Such a petty politician knows that frivolous lawsuit will only harm taxpayers, since it has no chance in the courts.
Even so-called “Originalists” like Alito would uphold the First Amendment with such frivolous litigation. Alito likely realizes that the very same “Tyranny of the Majority” could try to weaken gun rights and property rights.
Can someone explain to me, using professor Turkey’s first amendment legal arguments, what the difference is between flag burning and cross burning?
*Turley – honest typo or autocorrect mistake. No offense intended
or for that matter, what’s the difference between burning a gay flag that earned a protester 15 years in prison.
In the case of the guy who got 16 years, he broke into someone else’s property and burned their flag, as well as having significant priors that increased his sentencing. (One thing that most people don’t seem to understand about America: Hate Crime is not a category alone, it is a sentence increaser, not unlike the difference between 1st degree murder and 2nd degree murder.)
Burning a cross is generally similar. If you burn a cross in your own backyard, it’s not illegal. If you burn a cross on someone else’s property, that is illegal.
Cross-Burning is not illegal because it is contrary to the teachings of Jesus.
Cross-Burning is illegal because it seeks to intimidate African-Americans, Jewish-Americans and minority groups. This tactic is primarily used by domestic-terrorist groups.
Is burning things to intimidate minorities prohibited, but to intimidate proud US citizens who are not minorities lawful? Turley seemed to say that if the motivation for, or application of a law that could restrict speech is not viewpoint neutral, than it is unconstitutional. The reason you state for restricting cross burning does not sound viewpoint neutral to me. I’m not in favor of cross-burning, or flag-burning, or book-burning, or burning really anything as a form of protest or intimidation. But I do want our laws to be consistant and applied equally to all regardless of race, sex, etc. I also don’t think enhancing penalties based on motivation makes sense. A murder victim is just as dead no matter what the motivation was and deserves equal justice.
if burning the US flag is unconstitutional. Why did this guy get 15 years for putting the gay flag? https://x.com/realchrisrufo/status/1960026281723953182?s=46&t=OMJGqlargZi1IA2xyc22oA
Burning, not putting
He didn’t. It wasn’t his flag. The crime was not “flag burning.” Try again.
I am guessing you didn’t check the primary source.
What was the actual crime that he was convicted of?
“He was found guilty last month of hate crime harassment, reckless use of fire and being a habitual offender.”
https://www.bbc.com/news/world-us-canada-50861259
So, not flag burning.
Chris Rufo is awful.
Citizens burning the flag are protected from prosecution by the first amendment, true enough. BUT illegal aliens who have no legal right to be in this country can be deported after being arrested for burning our flag. The first amendment does not grant immunity to aliens, even asylum seekers, for demonstrating against this country or supporting this nation’s enemies.
Trump’s order is emphatically unconstitutional viewpoint discrimination.
But Trump will probably trim the scope a bit to address time-and-place exceptions. And it will make a helpful midterm election issue tied to the question of whether a new Supreme Court justice may be needed soon.
‘Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. It could be semaphore.’
Wrong. It is conduct. Speech literally means written words or oral words. Not conduct. Nowhere does the constitution form the basis for the invention of this nonsense.
President Trump knows what he is doing. I am hoping he signs an executive order banning people from eating dog poop.
The Democrats would protest by having a dog poop eating contest, just because the President outlawed it.
The Republicans are for safe streets and greater punishment for gang bangers, murders, wife beaters, thieves, etc. The Democrats like idiots now embrace murders, rapists, child predators, human traffickers. Their poster boy is an MS13 gangster who beats his wife and traffics humans. He may have also killed the mother of a rival gang member in El Salvador. He’s been here for years and cannot speak more than a word of English. This is the person they rally around?
What insanity!
em
What insanity!
___________________
Yep, leave it to the dem-o-rat party.
It’s like Trump playing “rope a dope” with the Democrats. Its been especially entertaining.
Fifteen years in prison for burning the gay pride flag in Iowa:
https://x.com/realchrisrufo/status/1960026281723953182
That is dishonest bulldust. There was NO PENALTY WHATSOEVER for the fact that what he burned was a Pride flag. He would have received the exact same penalty no matter what it was he burned.
His crime was of course the fact that the flag wasn’t his. You have the right to burn a Pride flag, or a USA flag, or a Nazi flag, but only if it belongs to you (or you have the owner’s consent). This person stole and burned a flag belonging to a church; that was his crime.
His sentence was enhanced, because his crime was motivated by hatred on the basis of sexual orientation. Again, it wouldn’t have mattered what he burned. Burning a gay church’s US flag out of hatred of gay people, or just setting fire to a gay bar’s awning, would be the same crime with the same enhancement. The enhancement is not for the object burned, but for the crime’s motive.
His sentence was then further enhanced because he was a CAREER CRIMINAL. It was exactly like a “three strikes” law turning a $20 robbery into a life sentence. But he only got about ten extra years, rather than life; so this was more lenient than ‘three strikes” laws.
15 YEARS OF A PERSONS LIFE REMOVED FROM LIFE FOR WHAT?
We’ve lived through insanity this far CISGENDER? I IDENTIFY WITH MY GENITALIA????
Go screw yourself. Where is the person and I’ll break him out.
Actually…. not correct. Texas v Johnson did not different between publicly or privately owned flags. It said ALL flag burning is ok.
Absolutely false:
“Our inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was prosecuted only for flag desecration — not for trespass, disorderly conduct, or arson.” FN8
Texas v. Johnson involved the defendant using his own flag.
https://supreme.justia.com/cases/federal/us/491/397/
Did you just make that up? Why?
Absolutely correct. Oldman posts stuff from fear mongers like Chris Rufo, who have been routinely discredited, for BS, without checking the underlying primary source.
ALWAYS check the primary source. The real crime is the failure to engage with honest intellectual discussion by relying on misleading snippets from headlines devoid of context.
I’m certain he knows that he cannot win this when it goes before the SCOTUS. In the meantime, which will include the run-up to the mid-terms, we can look forward to being treated to the spectacle of Leftists burning the Flag to show their defiance, and Democrat politicians loudly supporting them. All just from signing an Executive Order. If he loses the case he has lost nothing, but the side show the stupid Leftists will provide will be priceless.
OT, Breaking: Judge Dugan in Milwaukee cannot hide behind judicial immunity. The federal court has rejected that claim, as there is no immunity for judges to commit crimes.
https://www.foxnews.com/us/federal-judge-rejects-milwaukee-judges-immunity-claim-ice-obstruction-case
That too, but more importantly, even if there is immunity it’s only for judicial acts. A judge can’t rely on immunity to rob banks, or commit other crimes that have nothing to do with her judicial function.
Wouldn’t a full review of the topic include:
1) any 5-4 SCOTUS decision is the equivalent of Roe v. Wade and might well be reversed decades later, and
2) a constitutional amendment to overturn SCOTUS is always an option, which might obtain at least majority support in Congress and/or the states?
(1) The precedent on this could conceivably be overruled, but that is highly unlikely. The broad freedoms of the First Amendment have broad support from right and left. Roe v. Wade by contrast did not rely on any text in the Constitution addressing abortion, since there is none, and its low-quality reasoning (if you can call it that) was widely panned even by pro-choice legal scholars such as John Hart Ely. I studied it in law school and believe me, it was an abomination. There’s virtually no legal analysis in it; it is essentially a piece of legislation.
(2) Professor Turley acknowledges in his article above that a constitutional amendment is possible.
Yes, I should’ve noticed (2). The best amendment would be short and sweet. Then I began thinking of fifty state flags plus DC & PR, military service flags, and the KIA/MIA flag. There’s even a DoJ flag, one for the U.S. A.G., one for the deputy A.G., one for the Solicitor General, …
*. The purpose of life is la dolce vita. The left, progressives are grinding negativity , lies, alternate realities having no base in nature and the majority of people will never be in agreement.
You’ve got 4 years , Cheech and Chong.