Is It Legal to Burn the American Flag? Supreme Court Says Yes—But Trump’s 2025 Order Challenges That

Yes, burning the American flag is legal in the United States. The Supreme Court ruled in 1989 that flag burning is protected symbolic speech under the First Amendment, even though it offends many Americans. However, in August 2025, President Trump signed an executive order directing law enforcement to arrest flag burners and seek one-year prison sentences, setting up a direct challenge to decades of constitutional precedent.

Just hours after Trump’s executive order, a man was arrested in Lafayette Park near the White House for burning an American flag, marking the first test case of this constitutional showdown.

If you’ve ever wondered whether someone can legally burn the flag during a protest, or why flag burning isn’t a crime despite seeming disrespectful, you’re not alone. This question sits at the heart of one of America’s most heated debates: where does free speech end and patriotic respect begin?

Let’s break down everything you need to know about flag burning laws, from Supreme Court rulings to the current constitutional crisis unfolding in 2025.

The Clear Legal Answer: Flag Burning Is Protected Speech

Here’s the bottom line that’s been settled law for over 35 years:

Burning the American flag as a form of protest or political expression is constitutionally protected under the First Amendment. You cannot be prosecuted simply for burning a flag to express a political message.

This protection comes from two landmark Supreme Court cases that struck down both state and federal laws attempting to ban flag desecration. The Court ruled that even deeply offensive symbolic speech deserves constitutional protection.

But in August 2025, things got complicated.

Breaking: Trump’s Executive Order Creates Constitutional Showdown

The Supreme Court ruled in a 5-4 decision in 1989 that burning the U.S. flag as a form of protest is constitutionally protected under the First Amendment, and Trump’s executive order urged Attorney General Pam Bondi to find a case that could challenge that ruling.

The executive order calls on the Attorney General to prosecute flag burners to the fullest extent possible, claiming without evidence that flag burning is being used by foreign nationals to intimidate and threaten Americans.

The order argues that while acknowledging Supreme Court rulings on First Amendment protections, the Court has never held that flag desecration conducted in a manner likely to incite imminent lawless action or that amounts to fighting words is constitutionally protected.

This creates a direct conflict between executive action and Supreme Court precedent—something that will likely require judicial resolution.

Texas v. Johnson: The Case That Made Flag Burning Legal

The story of flag burning’s legal protection starts in 1984 at the Republican National Convention in Dallas.

Gregory Lee Johnson burned an American flag outside the convention to protest President Ronald Reagan’s policies. Texas police arrested him, and he was convicted under a Texas law that made it a crime to desecrate the flag.

Johnson fought the conviction all the way to the Supreme Court.

In 1989, the Court issued its landmark decision in Texas v. Johnson, 491 U.S. 397.

The vote was 5-4 in favor of protecting flag burning as free speech. Justice William Brennan wrote the majority opinion, joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy.

Yes, you read that right—conservative Justice Antonin Scalia voted to protect flag burning. He believed the First Amendment protected even speech he personally found offensive.

The Court’s reasoning was straightforward: the government cannot prohibit expression just because society finds the idea offensive or disagreeable. Flag burning communicates a political message, making it symbolic speech entitled to First Amendment protection.

As Justice Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Congress Tried to Ban Flag Burning—The Supreme Court Said No Again

Outraged by the Texas v. Johnson decision, Congress moved quickly.

In 1989, lawmakers passed the Flag Protection Act, making it a federal crime to knowingly mutilate, deface, burn, or trample upon any U.S. flag. The law carefully avoided mentioning the flag’s symbolic value, hoping to pass constitutional muster by focusing on protecting the flag as government property.

It didn’t work.

In 1990, the Supreme Court struck down this federal law in United States v. Eichman, 496 U.S. 310. Again by a 5-4 vote, the Court reaffirmed that flag burning is protected speech.

The government cannot criminalize flag desecration even when the law doesn’t explicitly reference the flag’s symbolic meaning. The Court saw through the attempt—any law punishing flag burning is inevitably content-based because it targets the communicative impact of the conduct.

Why the First Amendment Protects Flag Burning

The First Amendment states: “Congress shall make no law… abridging the freedom of speech.”

But burning a flag is conduct, not words. So why does it get First Amendment protection?

The Supreme Court has long recognized “symbolic speech”—expressive conduct that communicates a message. Examples include wearing armbands, burning draft cards (when done for expressive purposes), or displaying symbols.

Flag burning clearly communicates a message. When someone burns a flag at a protest, they’re expressing political dissent, disagreement with government policies, or critique of American actions. That communicative intent brings it under the First Amendment’s umbrella.

The Court applies a test for symbolic speech:

1. Is there an intent to convey a particular message?
2. Is there a substantial likelihood that the message would be understood by observers?

Flag burning passes both prongs. The message is clear: the person burning the flag is expressing profound disagreement or protest.

The History of Flag Desecration Laws in America

Flag protection laws aren’t new—they’ve been around for over a century.

Early 1900s: States began passing flag desecration laws, often motivated by commercial misuse of the flag rather than political protest. The laws prohibited using the flag in advertising or treating it disrespectfully.

1968: Congress passed the first federal flag desecration law, making it a crime to “knowingly cast contempt” upon the flag by publicly mutilating, defacing, burning, or trampling it. This law came during the Vietnam War era when flag burning became a symbol of anti-war protest.

1970s-1980s: Courts began striking down flag desecration convictions, finding them unconstitutional restrictions on free speech. Lower courts were split on the issue.

1989: Texas v. Johnson settled the question at the Supreme Court level, invalidating flag desecration laws nationwide.

1990: United States v. Eichman struck down Congress’s attempt to work around the Johnson decision.

1995-2006: Congress repeatedly proposed constitutional amendments to ban flag desecration. These came close to passing—a 2006 Senate vote failed by just one vote—but never achieved the two-thirds majority needed in both chambers.

2025: President Trump’s executive order attempts to revive prosecutions despite Supreme Court precedent.

Failed Constitutional Amendment Attempts

Since the Supreme Court made flag burning legal, there have been multiple attempts to overturn that decision through a constitutional amendment.

A constitutional amendment is the only way to override a Supreme Court interpretation of the Constitution. It requires a two-thirds vote in both the House and Senate, then ratification by three-fourths of state legislatures.

The proposed “Flag Desecration Amendment” has been introduced in almost every Congress since 1989. It typically reads something like: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Closest calls:

• 1995: Passed the House 312-120 but failed in the Senate 63-36 (needed 67 votes)
• 2006: Passed the House 286-130 but failed in the Senate 66-34 (needed 67 votes, fell one vote short)

The amendment has strong public support—polls consistently show 70% or more of Americans favor making flag burning illegal. But it faces opposition from free speech advocates, civil liberties organizations, and lawmakers who believe protecting unpopular speech is essential to the First Amendment.

Since 2006, momentum for the amendment has waned, though it’s occasionally reintroduced.

When Flag Burning Might Actually Be Illegal

While the Supreme Court protects flag burning as political speech, there are circumstances where you could face legal consequences:

Fire code violations: Burning anything in public may violate local fire codes or create a fire hazard. You can be cited for starting an open fire without a permit, especially in urban areas or during fire bans.

Property damage: Burning someone else’s flag is destruction of property. The First Amendment doesn’t give you the right to burn a flag that doesn’t belong to you.

Inciting violence or imminent lawless action: The Supreme Court has never held that flag desecration conducted in a manner likely to incite imminent lawless action is constitutionally protected. If flag burning is used specifically to provoke an immediate violent response and creates a clear and present danger, it might fall outside First Amendment protection under the “incitement” exception.

“Fighting words”: Flag desecration that amounts to fighting words may not be constitutionally protected. However, the Supreme Court has set a very high bar for what constitutes “fighting words”—words that by their very utterance inflict injury or tend to incite an immediate breach of peace.

Disorderly conduct: If flag burning creates a riot or significant public disturbance, you might be charged with disorderly conduct—though courts scrutinize these charges carefully when they involve expressive activity.

On federal property: There may be additional restrictions on flag burning on certain federal property, though these would be subject to constitutional scrutiny.

As part of other criminal activity: If you burn a flag while committing another crime (like trespassing or vandalism), you can be prosecuted for those underlying offenses.

The key distinction: you’re being prosecuted for the secondary illegal conduct (fire code violation, property damage, etc.), not for the expressive act of flag burning itself.

Proper Flag Retirement vs. Protest Burning

There’s an important distinction between burning a flag as political protest and burning a worn flag as respectful disposal.

The U.S. Flag Code (4 U.S.C. §§ 1-10) provides guidelines for flag etiquette, including disposal. The code states: “The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.”

Organizations like the American Legion, Veterans of Foreign Wars (VFW), Boy Scouts, and Girl Scouts conduct flag retirement ceremonies where worn or damaged flags are ceremonially burned with respect.

Key differences:

Respectful retirement:

• Done in a dignified ceremony
• Flag is worn, tattered, or damaged beyond repair
• Conducted by veterans organizations, scouts, or in private
• Accompanied by proper protocol (often folding the flag, saying words of respect)
• Intent is to honor the flag

Protest burning:

• Done as political expression
• Flag may be in good condition
• Often conducted publicly at protests or demonstrations
• Intent is to communicate dissent or criticism
• May be accompanied by political statements

Both are legal under current law, but they carry vastly different meanings.

If you have an old flag that needs disposal, contact your local American Legion, VFW post, or Boy Scout troop. Many conduct regular flag retirement ceremonies, especially around Flag Day (June 14) or Independence Day.

How State Laws Interact with Federal Constitutional Protections

Many states still have flag desecration laws on their books, even though they’re unenforceable after Texas v. Johnson.

These laws remain in state codes because legislatures haven’t repealed them, but they’re “dead letter” laws—police and prosecutors cannot enforce them without violating the Constitution.

Examples of state flag laws still on the books:

• Several states make it a misdemeanor to “desecrate,” “defile,” or “cast contempt upon” the American flag
• Penalties typically range from small fines to 30 days in jail
• Some states also protect state flags from desecration

If you were arrested under one of these state laws today, the charges would be dismissed or thrown out as unconstitutional. Defense attorneys would cite Texas v. Johnson and United States v. Eichman.

The Supremacy Clause of the Constitution (Article VI) means federal constitutional protections override conflicting state laws. When the Supreme Court interprets the First Amendment to protect flag burning, no state can make it illegal.

That said, Trump’s 2025 executive order directing arrests for flag burning creates uncertainty about how state and local law enforcement will respond.

How Law Enforcement Handles Flag Burning in Practice

Before August 2025, here’s how police typically handled flag burning incidents:

Police officers at protests would generally not interfere with someone burning a flag as political expression. They might ensure the burning doesn’t create a fire hazard or breach the peace, but they wouldn’t make arrests solely for flag burning.

Occasionally, someone would be arrested for flag burning, but prosecutors would quickly drop charges after defense attorneys pointed out the conduct is constitutionally protected.

Officers might arrest someone for related offenses (disorderly conduct, fire code violations, etc.) if the situation escalates or creates public safety concerns, but not specifically for flag desecration.

Post-August 2025 landscape:

Following Trump’s executive order directing immediate arrests for flag burning with one-year prison terms, at least one arrest occurred within hours. How this plays out legally remains to be seen.

Legal experts expect these cases to be challenged in court, with defense attorneys arguing that arrests violate clearly established First Amendment rights. Civil liberties organizations have already signaled they’ll defend anyone prosecuted under the executive order.

Recent Flag Burning Cases and Legal Developments

August 2025 — The Most Significant Development in Decades:

President Trump issued an executive order on August 25, 2025, directing that anyone burning the American flag “will be immediately arrested” and face one-year prison terms.

A man who identified himself as a 20-year combat veteran was arrested Monday after setting fire to an American flag in front of the White House, just hours after Trump signed the executive order.

This case will likely become a landmark test of whether an executive order can override Supreme Court precedent. Constitutional law experts widely predict the order cannot stand as written, since executive orders cannot override constitutional protections established by the Supreme Court.

The arrests made under this order will almost certainly lead to court challenges, potentially reaching the Supreme Court again.

Other notable recent incidents:

Since the Johnson and Eichman decisions, flag burning incidents have continued during protests, particularly around:

• Anti-war demonstrations
• Presidential inaugurations
• Black Lives Matter protests
• Immigration policy protests
• International conflicts

Most incidents don’t result in arrests for flag burning specifically, though protesters may face other charges.

The Political and Cultural Debate

Flag burning is one of America’s most emotionally charged free speech issues.

Arguments for keeping flag burning legal:

• Free speech principle: The First Amendment is strongest when it protects unpopular speech. If government can ban flag burning, what other dissent might it prohibit?
  
• Avoiding thought police: Allowing government to punish certain ideas or symbols is a dangerous path toward thought control.
  
• Veterans fought for freedom: Many veterans argue they fought to defend the freedoms the Constitution guarantees, including the right to burn the flag, even if they find it personally offensive.
  
• More speech, not less: The answer to offensive speech is more speech—counterprotests, condemning the act publicly—not censorship.
  

Arguments for banning flag burning:

• Respect for sacrifice: The flag represents the sacrifices of service members who died defending America. Burning it dishonors their memory.
  
• National unity symbol: The flag is a unique national symbol that deserves special protection as a unifying emblem.
  
• Not essential to speech: People can express political dissent in countless ways without desecrating the flag.
  
• Public opinion: Overwhelming majorities of Americans support making flag burning illegal.
  

This debate reflects deeper tensions in American democracy: individual rights versus collective values, absolute free speech versus respect for national symbols, constitutional principle versus public sentiment.

How Other Countries Handle Flag Desecration

The United States is unusual in providing such strong protection for flag desecration.

Countries that ban flag burning:

• Germany: Desecrating the German flag is a criminal offense punishable by up to three years in prison.
• France: Flag desecration can result in fines of up to €1,500.
• China: Desecrating the Chinese flag is punishable by up to three years in prison.
• Denmark: Burning the Danish flag is illegal (though burning other countries’ flags is protected).
• Australia: Several Australian states have flag desecration laws.

Countries with protections similar to the U.S.:

• Canada: The Canadian Supreme Court ruled flag desecration is protected expression.
• Several European nations: Have freedom of expression protections that might cover flag burning, though it’s rarely tested.

The U.S. approach reflects an exceptionally strong commitment to protecting even deeply offensive speech, rooted in the First Amendment’s broad protections.

Practical Advice for Protesters and Citizens

If you’re considering burning a flag as political protest:

Understand the legal landscape:

• Historically, flag burning has been constitutionally protected since 1989
• As of August 2025, there’s legal uncertainty due to Trump’s executive order
• You may face arrest and prosecution, requiring legal defense
• Be prepared for potential legal battles

Take precautions:

• Check local fire codes—you may need a permit for any open burning
• Use only your own flag (burning someone else’s flag is property destruction)
• Choose a safe location away from buildings, vehicles, and vegetation
• Have fire safety equipment available
• Document everything (video can prove you were engaged in peaceful protest)

Expect consequences:

• Even if charges are ultimately dismissed, you may be arrested
• You could face hostile reactions from bystanders
• You may need legal representation
• Consider consulting with civil liberties organizations beforehand

Alternative forms of protest:

• If you want to make a statement without legal risk, consider flying a flag upside down (signal of distress), wearing it in symbolic ways, or displaying modified versions with messages
• Many effective protests don’t involve burning the flag

If you witness flag burning:

• Remember it’s constitutionally protected speech (or at least has been for 35 years)
• You can express disagreement through counterprotest or speech
• Physical confrontation would be illegal assault
• Police may monitor for fire safety but traditionally haven’t arrested for flag burning itself

Current uncertainty: The August 2025 executive order creates unprecedented legal uncertainty. Anyone considering flag burning should understand they may be arrested despite decades of constitutional precedent protecting the conduct.

Frequently Asked Questions

Is burning the American flag illegal?

No, burning the American flag is not illegal under established Supreme Court precedent. The Court ruled in 1989 that flag burning is protected symbolic speech under the First Amendment. However, President Trump’s August 2025 executive order directs law enforcement to arrest flag burners, creating a constitutional conflict that will require judicial resolution.

What did the Supreme Court say about flag burning?

In Texas v. Johnson (1989), the Supreme Court ruled 5-4 that flag burning is constitutionally protected symbolic speech. Justice Brennan wrote that the government cannot prohibit expression just because society finds it offensive. The Court reaffirmed this in United States v. Eichman (1990), striking down a federal flag protection law.

Can you go to jail for burning the flag?

Under established constitutional law, no, you cannot be jailed simply for burning the flag as political protest. However, Trump’s 2025 executive order calls for one-year prison sentences for flag burning, which would require overturning Supreme Court precedent if enforced.

Is flag burning protected by the First Amendment?

Yes, the Supreme Court has ruled that flag burning is protected symbolic speech under the First Amendment. The Court recognizes that protecting offensive speech is essential to free speech principles—even when that speech involves burning the nation’s most important symbol.

What is the penalty for burning the American flag?

Under current constitutional law, there is no legal penalty for burning the flag as political expression. Before 1989, penalties varied by state, typically ranging from fines to 30 days in jail. The Trump administration’s 2025 executive order attempts to impose a one-year prison term, but this directly conflicts with Supreme Court rulings.

When did flag burning become legal?

Flag burning became constitutionally protected on June 21, 1989, when the Supreme Court decided Texas v. Johnson. Before this, many states had laws making flag desecration a crime, and Congress passed federal flag protection laws in 1968.

Can states make flag burning illegal?

No, states cannot make flag burning illegal because the Supreme Court’s interpretation of the First Amendment applies to all states through the Fourteenth Amendment. Many states still have flag desecration laws in their codes, but these are unenforceable “dead letter” laws that violate the Constitution.

Is it disrespectful to burn the American flag?

Many Americans consider burning the flag deeply disrespectful and offensive, particularly to veterans and their families. However, the Supreme Court ruled that even disrespectful expression deserves First Amendment protection. The legality of an action is separate from its morality or respectfulness.

How should you properly dispose of an American flag?

The U.S. Flag Code recommends burning as the proper disposal method for worn or damaged flags, but done in a dignified, respectful manner. Contact your local American Legion, VFW post, Boy Scouts, or Girl Scouts to participate in a flag retirement ceremony. These organizations conduct proper flag retirement ceremonies throughout the year.

Has anyone been arrested for burning the flag?

Yes, many people have been arrested for flag burning over the years. Before 1989, these arrests often led to convictions. Since the Johnson decision, arrests occasionally happen but charges are typically dismissed as unconstitutional. In August 2025, following Trump’s executive order, arrests resumed, including a veteran arrested outside the White House.

What happens if I burn the flag on federal property?

Burning the flag on federal property may subject you to additional regulations about fire safety or protest activities on government property. In August 2025, a man was arrested for burning a flag in Lafayette Park, a federal park outside the White House. The constitutional protections still apply, though federal property may have additional rules about fire hazards and demonstrations.

Can I be arrested for burning someone else’s flag?

Yes, burning someone else’s flag is destruction of property and can lead to criminal charges. The First Amendment protects burning your own flag as political expression, but it doesn’t give you the right to destroy someone else’s property.

Is flag burning considered “fighting words”?

Generally, no. While the Trump administration’s executive order argues that flag desecration that amounts to fighting words may not be protected, the Supreme Court has set a very high bar for what constitutes “fighting words.” Simply offending people or making them angry doesn’t meet this standard—the words must be likely to provoke an immediate violent response.

What about burning flags of other countries?

Burning flags of other countries in the United States is generally legal as a form of political expression, though it may offend diplomatic relations. Some countries have laws against desecrating their flags even when it happens abroad, but U.S. courts wouldn’t enforce such laws. However, burning a foreign flag could be considered hate speech or harassment in specific contexts.

The Bottom Line: Constitutional Protection Meets Executive Challenge

For 35 years, the answer to “Is it legal to burn the American flag?” has been a clear yes, protected by the Supreme Court’s interpretation of the First Amendment.

The Supreme Court’s 1989 ruling established that burning the U.S. flag as a form of protest is constitutionally protected, though Trump’s executive order urged the Attorney General to find a case that could challenge that ruling.

We’re now witnessing an extraordinary constitutional moment where executive action directly conflicts with Supreme Court precedent. The cases stemming from the August 2025 executive order will determine whether decades of First Amendment protection for flag burning will stand or be reexamined by today’s Supreme Court.

What makes this issue so powerful is that it forces us to confront what we value more: the symbol of our freedoms or the freedoms themselves. The Supreme Court has historically chosen to protect the freedom—even when it means allowing conduct that deeply offends millions of Americans.

As Justice Robert Jackson wrote in a different flag case in 1943: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

That principle is now being tested once again.

This article provides legal information about flag burning and First Amendment protections in the United States. It is not legal advice. If you face arrest or prosecution related to flag burning or free speech activities, consult with a qualified attorney or contact civil liberties organizations like the American Civil Liberties Union (ACLU).

About the Author

Sarah Klein, JD, is a licensed attorney and legal content strategist with over 12 years of experience across civil, criminal, family, and regulatory law. At All About Lawyer, she covers a wide range of legal topics — from high-profile lawsuits and courtroom stories to state traffic laws and everyday legal questions — all with a focus on accuracy, clarity, and public understanding.
Her writing blends real legal insight with plain-English explanations, helping readers stay informed and legally aware.
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