In 1989, the U.S. Supreme Court declared in the case Texas v. Johnson that burning an American flag was a form of free speech protected by the First Amendment.
On Aug. 25, 2025, President Donald Trump signed an executive order titled "Prosecuting Burning of the American Flag," which many reputable news outlets reported on. Trump's apparent contradiction of the Supreme Court ruling sparked outrage online.
When Trump signed the executive order, he described it as follows: "If you burn a flag, you get one year in jail, no early exits, no nothing." Margo Martin, the president's communications adviser, also used that wording to describe the executive order in a post on X.
The claim that burning a flag would be punished by a year in jail also quickly spread online, and Snopes readers searched the site asking about it. NBC News reported that a man burning a flag in front of the White House to protest the executive order had been arrested on the same day; he was accused of violating a prohibition on starting a fire in a public park.
We found that while the executive order did aim to punish flag burning, it did not establish a specific punishment for doing so. As such, the claim is a mixture of true and false information. Whether Trump's executive order is lawful is an entirely different matter.
Texas v. Johnson
In 1968, during the Vietnam War (and the massive protests that accompanied it), Congress passed the Flag Protection Act, which banned flag desecration, according to the nonpartisan Congressional Research Service.
In 1984, Gregory Lee Johnson burned an American flag in front of
Johnson appealed the decision, which eventually made its way to the Supreme Court. In a 5-4 ruling, the high court ruled in favor of Johnson, declaring that the First Amendment protected flag burning. In his majority opinion, Justice William Brennan wrote that Johnson's conduct was permitted, because "the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent," and the First Amendment protects such conduct, even when "society finds the idea offensive or disagreeable." The ruling overturned the state laws and federal laws that banned the practice.
The next three(-ish) decades
In response to the decision, Congress passed the Flag Protection Act of 1989, which criminalized "the conduct of anyone who 'knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon' a United States flag, except conduct related to the disposal of a 'worn or soiled' flag," according to Cornell University's Legal Information Institute.
Johnson (and others) were arrested for burning flags the day the law went into effect. The same five justices found the Flag Protection Act unconstitutional in a separate Supreme Court case, United States v. Eichman, the next year.
Since then, Congress has attempted to pass a constitutional amendment making flag desecration illegal several times. None has succeeded — the closest attempt was in 2006, when the House passed the amendment, while the Senate came just one vote short, according to the Congressional Research Service.
Trump has talked about making flag desecration illegal since at least November 2016, while he was president-elect. "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail," he tweeted.
The executive order
Justifying the executive order will still be difficult, even though the Supreme Court is
Trump's executive order claimed that burning the flag "may incite violence and riot," despite the fact that the Supreme Court rejected that exact defense in Texas v. Johnson. (The order also claimed, without providing evidence, that foreign nationals burn flags "as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.")
From the case syllabus:
Expression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression.
In order to get around the constitutional protection put in place by Texas v. Johnson, the executive order claimed that "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."
Brennan's opinion in Texas v. Johnson explicitly rejected the idea that burning the American flag could be considered "fighting words," words meant to directly incite violence that are not protected by freedom of speech. The decision noted that states have a right to protect against "imminent lawless action," but recommend doing so using different statutes, like breach-of-the-peace statutes.
Regardless, the executive order called for the U.S. attorney general to "vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag" in ways that caused "harm unrelated to expression." The order suggests these acts might include "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."
The executive order does not further define "illegal discrimination against American citizens" or "other violations of Americans' civil rights."
The executive order also gives the secretary of state, attorney general and secretary of homeland security the power to "deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States," of noncitizens who burn a flag.
The New York Times noted the similarities between the executive order's permissions and First Amendment lawsuits that have been brought by pro-Palestine, noncitizen activists who have been arrested and had visas and green cards revoked under the administration's policies.
ACLU attorney Brian Hauss told NPR that t