Unwarranted Criticism of Executive Order on Desecration of the American Flag

On August 25, 2025, President Trump issued an executive order that pertains to the desecration of the American flag. The executive order has stirred controversy. Some news reports and social media commentary claim President Trump is trying to unilaterally criminalize flag burning and ignore controlling Supreme Court precedent to the contrary. However such claims are unwarranted because they do not accurately reflect important details and qualifications set forth in the executive order. 

The August 25, 2025 executive order does not seek to criminalize, by Presidential edict, the desecration of the American flag. To the contrary, Section 2(a) of the executive order states the following: 

“The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.” 

The executive order specifically refers to existing federal law and does not purport to create new law by Presidential edict. The executive order does not unilaterally create, or purport to create, any new federal law. 

Furthermore, the August 25, 2025 executive order does not ignore Supreme Court precedent on the issue of desecration of the American flag. To the contrary, it explicitly cites the Supreme Court decision of Texas v. Johnson, 491 U.S. 397 (1989), which held desecration of the 

American flag may, under some circumstances, be protected under the First Amendment of the U.S. Constitution. Significantly, the August 24, 2025 executive order states the following: 

“Section 1. Purpose . . . Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.” 

“[Section 2. (c)] To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.” 

Accordingly, the executive order does not ignore or seek to circumvent or evade the Supreme Court decision in Texas v. Johnson. Rather, it explicitly acknowledges that decision, and cites pages of Texas v. Johnson (pages 408-410) where the Court specifically noted that: (1) it was not holding that desecration of the American flag is always protected by the First Amendment regardless of the circumstances, and (2) it was not holding that desecration of the American flag always falls outside the bounds of its decisions in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)(First Amendment does not prohibit prosecution if there is a showing that the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”) or Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942)(First Amendment does not protect “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace”). There is nothing improper or unconstitutional about the executive order explicitly citing a pertinent Supreme Court decision and noting passages of that decision that indicate desecration of the American flag is not absolutely protected under the First Amendment. 

I cannot reasonably predict whether the Administration will be able to successfully persuade Federal courts that any particular case involving desecration of the American flag can be legitimately prosecuted because it falls within the scope of the Supreme Court’s qualifications  in Texas v. Johnson (which do not rule out the possible applicability of its holdings in Brandenburg v. Ohio or Chaplinsky v. New Hampshire to some instances of flag burning, depending on careful consideration of the particular circumstances). However, I do contend that it is not improper, unlawful, or unconstitutional for the Trump administration (or any other administration) to make a good faith argument to try to persuade a federal court that a particular civil action or criminal prosecution involving desecration of the American flag falls within the scope of any exceptions and qualifications explicitly recognized in Supreme Court decisions concerning the scope and application of the First Amendment. 

Finally, the August 25, 2025 executive order does not make desecration of the American flag an automatic, per se, basis for adverse action under U.S. immigration law. Rather the Executive Order states: 

“[Section 2.(d)] The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law. (italics added). 

When read in conjunction with the qualifications set forth earlier in the Executive Order, Section 2.(d) does not create an automatic, per se basis for adverse action under U.S. immigration law. 

To the contrary, it calls for a case-by-case determination whether such adverse action is warranted under the facts and circumstance of each case. 

A New York Time article dated August 25, 2025 (Charles Savage and Luke Broadwater, “Despite Trump’s Tough Talk, Flag Burning Is Protected Speech”), stated the following: 

“Signing the [executive] order in the Oval Office, Mr. Trump delivered tough talk about punishing those who desecrate the national symbol: ‘If you burn a flag, you get one year in jail, no early exits, no nothing.’ he declared. But there was a significant disconnect between the President’s words and the order he signed. The text says nothing about putting people in prison for a year.” 

That observation is correct. President Trump’s tough talk in the Oval Office about jail time is not contained in the executive order he signed. Political statements made by a President during the signing of an executive order are not incorporated into the text of the executive order being signed. Because President Trump’s “jail time” remark made in the Oval Office has no legal effect on the text of the executive order he signed, his gratuitous, ill-considered remark does not change the legal meaning of the text of the August 25, 2025 executive order he signed. 

As noted earlier, the August 25, 2025 executive order has stirred controversy. However, serious weight should not be given to criticisms that fail to acknowledge or consider the actual text of the executive order. Any objections to, and criticisms of, the executive order should be based on a fair and accurate reading of the text of the executive order, not based merely on second or third hand commentary in news reports or social media.  

My critique of unwarranted criticisms of the August 25, 2025 executive order does not mean that I believe Presidential executive orders cannot or should not be challenged. The modern history of executive orders offers a sobering picture of periodic Presidential overreach.  More than 70 years ago, the Supreme Court struck down an executive order issued by President Truman. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Since that decision, there have been other legal challenges to Presidential executive orders. Before people challenge the constitutionality and lawfulness of any particular executive order, they should read the particular executive order carefully, review relevant portions of the U.S. Constitution and federal statutes, and consider the Supreme Court decisions that have addressed challenges to previous executive orders. Partisan political rhetoric, knee-jerk commentary in news reports and social media, and volatile public opinion about any particular President or policy are not good substitutes for thoughtful discussion and argument over the constitutionality and legality of any particular executive order. 

Finally, even if people do not challenge the constitutionality and legality of a particular executive order, they can still offer cogent reasons for why they believe a particular executive order is unnecessary, flawed, impractical, ill-advised, counterproductive, or otherwise objectionable.