Donald Trump signed an executive order on August 25th, 2025, titled “Prosecuting Burning of the American Flag,” which directs the Attorney General to use existing laws to prosecute individuals who burn the American flag in cases where the act of flag burning was intended to incite violence, or in cases where the act itself violated other laws, regardless of the ideas expressed by the act itself. During the signing of this order, President Trump stated that “[if] you burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month.” This statement does not exist in the executive order itself, but it nonetheless clearly states the intent behind the order and its subtextual imperative to investigate individuals on the basis that they burned an American flag.
Flag-burning is a protected activity under the First Amendment. In the Supreme Court case Texas v. Johnson of 1989, the Supreme Court ruled that burning the American flag as a form of political protest is protected symbolic speech. Furthermore, outrage, even at a societal level, is not justification for suppressing free speech. It is understandable that some individuals who have served the United States in its armed forces or public offices, as well as those who deeply believe in the freedoms afforded by the constitution and subsequent amendments, may feel upset or offended by seeing an American flag lit on fire by one of its own citizens, but as the Supreme Court ruled, this offense is not justification for prohibiting this act.
This executive order does not explicitly state that the government must investigate or prosecute those who burn the flag, but its language and timing are both alarming, especially when considered in tandem with President Trump’s statement on one-year prison sentences. The language of the executive order, and arguably, its very existence, subtextually advises lawyers, law makers, and other individuals to work to investigate and prosecute flag burning in its own right, as is clear when we break the order’s key statement below.
“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.”
- The Attorney General shall prioritize the enforcement to the fullest extent possible…
- The Attorney General is being told to pursue flag burning aggressively
- …of our Nation’s criminal and civil laws…
- The executive order does not attempt to introduce new laws specific to flag burning, but to reuse existing laws.
- …against acts of American Flag desecration…
- The executive order implies that the act of flag burning shall serve as a special trigger for enforcement of laws.
- …that violate applicable, content-neutral laws, while causing harm unrelated to expression…
- The inclusion of content-neutral implies that flag burning should not be investigated in its own right, but only instances of flag burning that violate other, non-free-speech related laws.
- …consistent with the First Amendment…
- The executive order implies that prosecution for flag burning is not mutually exclusive with the First Amendment.
Combining these subtexts together, we see that the executive order urges the Attorney General to specifically pursue flag burning instances aggressively and, when able, bring forth prosecution against these individuals using evidence that either: proves the act itself violated laws independent of the intent behind the act itself or the ideas expressed by the individual who burned the flag, or, finds evidence of other crimes committed as part of the flag burning investigation. The title of the executive order fits right in with this subtext: “Prosecuting Burning of the American Flag.”
In matters of law, governance, and societal problems, proceedings always include considerations that extend beyond the subject matter in question. In other words, there’s always a bigger game. This truth is not limited to these aspects of humanity; it permeates throughout all human affairs. As a simple example, if two individuals were playing chess, and the person playing with the light pieces felt they were in a losing position, they could surreptitiously offer their opponent a sum of money to resign, or have someone in the crowd give them hints, or any other number of schemes. Suddenly, a game that is normally confined to a simple set of rules now has real world considerations, considerations that creeped in from “above.”
In regard to law, it’s tempting to believe that laws are written in stone, both in terms of their immutability and their interpretability, but this is not the case. The “bigger game” is that of human behavior – laws are only as lucid, effective, and just as are those who interpret and enforce them. In the best-case scenario, all involved would seek to interpret laws in the spirit in which they were originally written and enforce them only in cases where their use is legitimate and based on honest, open investigation. In the worst-case scenario, those in power would disregard them entirely and would use their power in any manner they see fit to pursue their own goals. In most real-world scenarios, things fall somewhere in-between, a place where laws are mostly enforced and somewhat respected, but where loopholes are sought out and exploited, and where equivocation is used purposefully as a tool of ambiguation, a place where laws are seen as obstacles as much as they are pillars of society, possibly more.
In light of this “bigger game,” the language in this executive order takes a more sinister tone. President Trump is targeting flag burning and flag burners. Today, burning a flag might not get you prison time, but if Trump’s statement on “one year of prison” foreshadows his future actions, it very well may in the near future. More pertinently, it serves as a means of persecuting political opponents, even if prison time is never at play. The act of flag burning is now considered a “special trigger” that will attract the government’s scrutiny, even if you’ve committed no crime whatsoever. I firmly believe that setting up a mechanism for official investigation into individuals solely on the basis of legal, but politically opposed action is highly unethical, and that is exactly the effect that this executive order will have, as its authors intended.
This is an attack on free speech, and it isn’t the first that has come from the White House this year. If this sounds alarmist, consider this: if the United States government were to try to limit our first amendment rights or remove them entirely, they would not start by making a full-frontal assault. Instead, they would take gradual steps to erode our first amendment protections, to chip away at its edges one piece at a time, starting with pieces that don’t directly affect many citizens, such as Trump’s efforts to strong-arm universities into adopting xenophobic policies, or as in this case, with pieces that don’t correspond to real issues, such as flag burning. The United States has a myriad of deeply rooted problems that it must solve, just as any country has; flag burning is not among them.
I believe that the United States’ guarantee of free speech forms the basis of its unique culture. It makes innovation of all kinds possible across all fields and industries. Free expression of ideas is crucial for any modern society, especially one which seeks to act as a world leader. However, it comes at a cost – the free exchange of ideas makes consolidation of power much more difficult. It’s easier to control elections and write unjust laws when those would speak out against it fear for their livelihoods, or perhaps their very lives. If President Trump is successful in outlawing flag burning, we won’t suddenly find ourselves teleported to a dystopian society, but we will find ourselves one step closer. Whether you vote Democrat, Republican, independent, third party, or not at all, you must vote for policies and politicians who endorse free speech, and more importantly, you must vote against those who do the opposite, for your own sake, if nothing else.
