Trump’s war on the First Amendment is likely to plant a burning flag back on the Supreme Court steps

Donald Trump expanded his efforts to diminish the scope of First Amendment protections on Monday as he signed an executive order directing the Justice Department to work on criminalizing the act of burning an American flag.

As The Independent reported last week, the order is functionally powerless. Trump can’t write laws by fiat, and the document merely instructs federal prosecutors to prosecute people for inciting violence if they are suspected of burning a flag at a rally or other event.

This latest effort is almost certain to be constitutionally fruitless, as experts noted after Monday’s signing ceremony in the Oval Office. But by lashing out against a famous form of protest with roots dating back to the Vietnam War era, the president could be poking a bear — and it may be by design.

“You burn a flag, you get one year in jail. You don’t get 10 years. You don’t get one month. You get one year in jail. And it goes on your record, and you will see flag burning stopping immediately,” Trump declared on Monday.

The president’s description of the supposed consequences is actually accurate; under federal law, a person can face up to 10 years in prison for incitement of a riot, or potentially more for more serious incitement involving death or serious bodily harm.

But there are two big problems with his desire to prosecute flag-burners. The first is Texas vs. Johnson, a Supreme Court decision in 1989 which struck down flag desecration bans in 48 states and ruled that the act was protected under the First Amendment’s provisions for free expression.

The second is the so-called “Brandenburg standard”, established in another SCOTUS case: Brandenburg vs Ohio, and clarified in others.

Thomas Berry of the Cato Institute explained in an interview with The Independent on Monday why that case, which defined the limits of prosecuting incitement to violence or illegal acts under federal law, would also prevent the Trump administration from winning any prosecutions against persons who burn the flag, except under the most extreme hypothetical circumstances.

“It’s very difficult to successfully prosecute an incitement charge because the prosecution needs to prove not only that the speech was likely to cause imminent violence but that it was intended to,” said Berry, who added: “Ironically, Trump himself has benefited from this high bar, since his speech on January 6, 2021 was followed by violence, but the intent prong would have made it difficult to convict him of incitement.”

In all likelihood, the most success the White House and Justice Department may find in cracking down on left-leaning protesters in this manner is in encouraging more demonstrations against the president in the nation’s capital and beyond. Burning the American flag emerged as a popular form of protest for anti-war Americans during the Vietnam Era and it has remained a form of attention-grabbing denunciation of the actions of the government.

“I think this strategy has very little chance to succeed, since it is hard to imagine a scenario where burning a flag on its own could be proven both likely and intended to provoke imminent lawless action. Merely provocative speech simply isn’t enough to satisfy the Brandenburg standard and lose constitutional protection,” said Berry.

Under George H.W. Bush Republicans pushed for a constitutional amendment to ban the practice. It went nowhere.

Berry added: “I imagine that the administration knows it has no chance of passing a constitutional amendment, so it chose to go this route to appear as if it is doing something, even though it is unlikely to win any convictions that would withstand constitutional review.”

Most recently, the practice returned to the streets of Washington, D.C. in 2024 when demonstrators burned a U.S. flag outside of Union Station, near the Capitol, to protest the visit of Israeli Prime Minister Benjamin Netanayhu amid the deadly Israeli siege of the Gaza Strip.

Trump pledged to ban the practice during his campaign for the White House, clearly provoked by those protests. At the time, he even compared the anti-Israel protests in Washington to his own supporters’ siege of the Capitol on January 6, making it one of the rare moments when then-candidate Trump seemed to acknowledge that January 6 was not a peaceful demonstration but was instead supposedly worthy of a law enforcement response.

But it may end up working in the president’s favor if he provokes further demonstrations in D.C., now home to a federal takeover, in the form of deployed National Guard troops and patrolling teams of federal law enforcement agents.

The president is eager for rationale to extend his takeover of the capital and the imposition of a visible militarized law enforcement presence as he seeks to expand his plans to other cities in liberal jurisdictions such as Baltimore, Chicago and New York City.

Trump could also use a defeat in the courts on this issue to continue ginning up anger against federal judges. Normally, that would be a useless tactic — but Trump is also pushing for Republicans in Congress to further restrict the power of the judiciary to declare his actions unconstitutional and issue nationwide injunctions halting them.

In the end, he could fail to ban flag burning, but succeed at another goal: eroding confidence in American institutions, painting his enemies as disloyal to the country, and fanning the flames of anger among his base.