Flag burning is protected speech, full stop.
You know it, I know it, and Donald Trump and his advisers certainly know it. We might not care for “scruffy, bearded, sandal-wearing people who go around burning the United States flag,” as the late, great Antonin Scalia once put it, but we all know that the flag in such cases is a powerful symbol. And criminalizing the destruction of such a symbol — however repellent we find the practice, however repugnant we find the perpetrator — violates the First Amendment’s free speech clause.
The 1989 Texas v. Johnson case “was a five-to-four decision, and I made the fifth vote,” Justice Scalia wrote in a 2012 speech at Wesleyan University. “Patriotic conservative that I am, I detest the burning of the nation’s flag. If I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, Congress, Supreme Court, even the nation or the nation’s flag.”
But, again, President Trump knows all this. So why would he sign, as he did yesterday, an executive order that calls for the prosecution of those who burn the American flag? What’s his angle?
His angle, I think, is to hand the Left yet another rope with which to hang itself.
Think about it: Flag-burning leftist dirtbags represent just a tiny fraction of the American people. Even many Democrats who detest Trump are uncomfortable with the image of the American flag being set ablaze by the unwashed wingnuts, the lunatic fringe of their party.
And Trump, whose political instincts are unparalleled, has perfected a strategy for marginalizing the Democrats. A couple of months back, I spelled out this two-step strategy: First, get your political enemies to hate your guts; second, seek out and embrace a series of issues that are wildly popular with the American people — the 60-40 and 70-30 and 80-20 issues — and thereby force your political opponents to paint themselves into an emotively unhinged electoral corner by reflexively taking the opposite side of those issues.
Flag burning is just such an issue. You don’t win supporters in this country by burning the flag. You lose them. As Trump put it in his EO:
Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. 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. Desecrating it is uniquely offensive and provocative. It is a statement 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. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.
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).
Here, then, Trump is acknowledging the First Amendment protection, but he’s also identifying a carve-out, a flag-burning exception that isn’t protected: flag burning that’s meant as an incitement to riot or engage in other acts of violence. For this, he says, the punishment should be a year in jail. He explained his thinking yesterday during a signing ceremony in the Oval Office.
BREAKING: President Trump signs an Executive Order punishing people who burn the American flag with a 1-year jail sentence:
“If you burn a flag, 1 year in jail, no exits and it goes on your record. You will see flag burning stop immediately.”
pic.twitter.com/q5ZoQQFWKr— Benny Johnson (@bennyjohnson) August 25, 2025
Here again is Scalia, the Great Originalist, this time from a 2011 speech to the Tea Party Caucus of the House of Representatives:
I urge you not to embrace the living Constitution, for a number of reasons. The most important one is that only the traditional view — [that] the meaning of the Constitution does not change — places any real constraints upon the decisions of future members of Congress or future judges. Since I accept that view, I am handcuffed. Show me what the original understanding was, and you got me. … I would have to vote, for example, to hold unconstitutional a statute forbidding the burning of the American flag. But if you abandon that criterion of original meaning, what other possible criterion is there to control your judges or, for that matter, your members of Congress?
It’s a great question.
Nonetheless, I expect Trump’s EO to be put to the test in short order. Indeed, I expect the American Civil Liberties Union and others on the lawyerly Left to trip over each other in order to represent the first smelly antifa type who burns a flag in defiance of Trump’s order. Those on the Left see it, perhaps rightly so, as a legal winner. But what Trump is counting on is that they don’t see it as a political loser. Who cares if we lose all seven swing states again? We beat Trump at the Supreme Court!
This, then, is Trump playing 3-D chess.
Trump Derangement Syndrome, which is a weapons-grade version of an affliction that psychiatrist-turned-columnist Charles Krauthammer first described back in 2003 as Bush Derangement Syndrome, causes otherwise normal folks to get spitting mad with the mere mention of Le Bête Orange. Trump knows this, and he continually uses it to his advantage. TDS is as real as the hair on 47’s head, and it’s causing the self-destruction of the Democrats as a political party.
Godspeed, Mr. President. Godspeed.
