Prosecuting Burning of The American Flag
This presidential order prioritizes the prosecution of American flag desecration, particularly acts that incite violence or violate existing laws.
It instructs the Attorney General to vigorously enforce laws against such actions while being mindful of First Amendment rights, and directs other agencies to take appropriate action, including immigration-related measures for foreign nationals.
The order does not affect existing agency authority or create new legal rights.
Arguments For
Preserving National Symbolism: The order aims to uphold the respect and sanctity of the American flag as a cherished national symbol representing American values and sacrifice.
Combating Violence and Incitement: The order focuses on prosecuting acts of flag desecration that incite violence, threaten public safety, or constitute hate crimes. This aims to prevent potential unrest and maintain social order. The order explicitly mentions the potential for violence and riot incited by flag burning.
Enforcing Existing Laws: The order prioritizes utilizing existing criminal and civil laws, focusing on content-neutral statutes that address the harmful consequences of flag desecration that are unrelated to the expression itself. This means addressing violations such as property damage or breach of the peace, rather than solely targeting speech.
Immigration Enforcement: The order allows for immigration consequences for foreign nationals who engage in flag desecration acts found to be violations of US law. This is justified as maintaining the integrity of immigration laws regarding the behavior of persons seeking to enter or remain legally in the country.
Clarifying Legal Ambiguity: The Attorney General is directed to pursue litigation to better define the limits of First Amendment exceptions in flag desecration cases, potentially leading to clearer legal precedents.
Arguments Against
First Amendment Concerns: The order potentially infringes on First Amendment rights related to freedom of speech and expression. While the order acknowledges Supreme Court precedents, its emphasis on prosecution could be challenged as overly restrictive.
Overreach of Executive Power: Critics may argue the order represents an overreach of executive power by attempting to circumvent or limit judicial interpretations of the First Amendment. It may prioritize the executive's view of acceptable expression over judicial review.
Potential for Misapplication: The broad language of the order could lead to inconsistent or unfair enforcement, with prosecutions potentially targeting individuals whose actions are constitutionally protected speech.
Resource Allocation: The implementation of the order requires significant resources from law enforcement and legal systems. This allocation of resources could reduce attention and resources from other areas of law enforcement or justice priorities.
International Relations Impacts: The immigration-related components of the order could negatively impact America's foreign relations and public image, potentially escalating tensions with foreign governments or individuals.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
This opening statement asserts the president's legal authority to issue the following order based on the US Constitution and federal laws.
Section 1. Purpose. 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).
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.
This section establishes the order's purpose: to protect the American flag and its symbolism.
It asserts the flag's importance in American history and identity, and links flag desecration to potential violence and threats.
The section also acknowledges relevant Supreme Court case law on freedom of speech, emphasizing that the order targets acts that incite immediate violence or constitute 'fighting words,' which are not fully protected by the First Amendment.
Sec. 2. Measures to Combat Desecration of the American Flag. (a) 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.
(b) In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.
(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.
(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.
This section outlines the specific measures to address flag desecration.
The Attorney General is directed to prioritize enforcement of existing laws against harmful acts of desecration.
The order also mentions cooperation with state and local authorities and authorizes immigration actions against foreign nationals involved in flag desecration, to the extent permitted by law.
Sec. 3. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.
This section ensures that if any part of the order is deemed legally invalid, the remaining parts will still remain in effect.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The costs for publication of this order shall be borne by the Department of Justice.
This section clarifies that the order doesn't supersede existing legal authorities or create new legal rights.
Its implementation is subject to available funding, and the Department of Justice is responsible for publication costs.
DONALD J. TRUMP
THE WHITE HOUSE,
August 25, 2025.
This section indicates the president's signature and the date of the order.