Trump promises justice over flag desecration despite free speech protections

President Donald Trump has promised that anyone who “defiles” the American flag will face “swift and unrelenting justice”, although US Supreme Court rulings protect flag burning as a form of political expression.

In a White House message dated 7 November, Trump referred to an executive order he signed in 2025. The order directs prosecutors to pursue people who break laws while desecrating the flag, to the fullest extent permissible. The new message itself sets out no new criminal penalty.

In 1989, the Supreme Court ruled that the conviction of Gregory Johnson for burning a flag during a political protest violated the First Amendment. The following year, it held that the federal Flag Protection Act could not constitutionally be applied to protesters who had burned flags.

Those rulings do not protect every action involving a flag or prevent prosecution for a separate offence. Earlier this year, a federal judge considered the case of Army veteran Jan Carey, who faced charges under park fire regulations after burning a flag near the White House in protest at Trump’s order.

The judge said the fire rules applied to Carey’s conduct, but allowed further inquiry into his claim that he was being prosecuted for protected speech. The judge also noted an independent potential justification for the charges, including apparent damage to property. In March, prosecutors asked the court to dismiss the charges permanently.

Trump also said the Department of Veterans Affairs would launch an online initiative in November with information on respecting, handling and retiring flags. His message noted that the US flag code recommends a dignified disposal, preferably by burning, when a flag is no longer fit for display.