Former President Donald Trump recently made headlines with a bold—and legally dubious—claim: that he had “taken the freedom of speech away” from those who burn the American flag, making it a crime punishable by up to one year in prison.
But here’s the catch: that’s not how the law works. In fact, Trump’s own executive order and decades of Supreme Court precedent directly contradict his assertion.
Table of Contents
- What Trump Actually Said
- The Supreme Court’s Stance on Flag Burning
- What His Executive Order Really Said
- Why This Matters Now
- Legal Experts Weigh In
- Sources
What Trump Actually Said
During a White House roundtable on October 9, 2025, focused on antifa and political unrest, Trump doubled down on a claim he first made in August. He told attendees—including Attorney General Pam Bondi and right-wing influencer Nick Sortor—that burning the American flag now carries a one-year prison sentence.
“We took the freedom of speech away because that’s been through the courts and the courts said, you have freedom of speech… But when they burn a flag, it agitates and irritates crowds.”
Trump argued that flag burning “incites tremendous violence,” justifying his supposed crackdown. He even posted on his social media platform on October 3, instructing law enforcement: “Anybody burning the American Flag will be subject to one year in prison… You will be immediately arrested.”
The Supreme Court’s Stance on Flag Burning
Trump’s claim flies in the face of a landmark 1989 Supreme Court decision: Texas v. Johnson. In a 5–4 ruling, the Court held that burning the U.S. flag as a form of political protest is protected speech under the First Amendment.
The justices reasoned that even deeply offensive expression—like desecrating a national symbol—is shielded when it conveys a political message. Since then, multiple attempts to criminalize flag burning through legislation or constitutional amendments have failed.
Key Takeaway:
Flag burning is not a crime in the United States—at least not when done as political protest.
What His Executive Order Really Said
On August 25, 2025, Trump signed an executive order directing the Justice Department to “prosecute flag burners to the maximum extent permitted by the Constitution.”
Notice the crucial phrase: “permitted by the Constitution.” Legal advisors ensured the order acknowledged the Johnson ruling. It did not create a new criminal penalty. There is no mention of a one-year prison sentence anywhere in the document.
Yet Trump continues to tell supporters otherwise—despite the lack of legal basis.
Why This Matters Now
This rhetoric isn’t happening in a vacuum. Since the September 10 killing of conservative activist Charlie Kirk, the Trump administration has escalated its crackdown on dissent:
- September 22: Signed an order labeling antifa a “domestic terrorist group” (legally unenforceable, experts say).
- September 25: Issued a national security memo targeting funders of groups promoting “anti-Americanism.”
- October 2025: Pushing to deploy National Guard troops to Portland over local objections.
Critics argue these moves blur the line between law enforcement and political retaliation—especially when paired with false claims about flag-burning penalties.
Legal Experts Weigh In
Constitutional scholars across the ideological spectrum agree: Trump cannot unilaterally override the First Amendment.
“No president—not even with an executive order—can criminalize protected speech. That’s not how constitutional democracy works.”
— Prof. Laurence Tribe, Harvard Law School
Others note that Trump’s repeated misinformation could erode public understanding of civil liberties.
