Smoke em if you got em

August 27, 2025

Donald Trump has signed an executive order purporting to criminalize the burning of an American flag in protest. Much is being made about the dubious legality of this move by news outlets across the spectrum. Is this legal? Short answer, no. Unfortunately, that isn’t particularly comforting. The whole point of the executive order is to be in contravention to the law. While far from the most pressing news story of the day, this recent performance of legal/political theatre is worth exploring because it says much about the direction the administration is taking executive power and the dissolving regard it has for the courts in the process.

Flag burning as an act of political protest is famously, and controversially, a protected right thanks to the 1989 Supreme Court decision in Texas v. Johnson. The Johnson decision is so foundational it gets name dropped in the text of the executive order itself. Many folks may be hearing about the case for the first time encountering this story, but lefty legal nerds (we exist! There are dozens of us! Dozens!) will recall Johnson emanated out of an incident in Texas involving a member of the Revolutionary Communist Youth Brigade who burned a flag outside the 1984 Republican National Convention and was subsequently charged and convicted. The case was argued before the Supreme Court by William Kunstler and the argument itself is a wild time capsule from the legal past.

The holding in Johnson isn’t particularly interesting. Essentially, a state can’t criminalize the act of burning a flag as unamerican because that would be a limitation on a person’s ability to express their opinion. This is what a first-year law student would breathlessly call a “classic first amendment issue.” A state can regulate the content-neutral public burning of any object in a public place. Makes sense. It follows the 20^thcentury American orthodoxy regarding free speech, that the First Amendment applies most to speech that is most objectionable, even speech critical of the country or the government. The ACLU famously adopted this as their justification for defending the free speech rights of neo-Nazis and the KKK.

What is interesting about the Johnson decision is the composition of the 5-4 majority. Among them were Federalist Society superhero Antonin Scalia as well as Anthony Kennedy, who will forever be remembered in history exclusively for vacating his seat to hand the Brett Kavanaugh appointment to Donald Trump. It was not so long ago that the “I may not like what you say but I will fight to death for your right to say it” mentality was a staunchly conservative one. Oh, how far we’ve come. If challenged, the survivability of the Johnson decision is entirely dependent on the present reactionary super-majority’s degree of reverence for past precedent. If the destruction of Roe is any indicator of what is to come, we should expect the Supreme Court to overturn Johnson given the opportunity.

Weirdly, the future of flag burning as an act of political protest may be more certain than the present state of the enforcement of the executive order. Already a man has been arrested in Washington DC for flag burning, although in this instance the basis of his arrest was for unlawful public burning generally and not for violating the executive order at issue specifically. It remains to be seen whether or not the recently installed DC federal prosecutor and disgraced Fox News contributor Jeanne Pirro’s office will file charges related to the order.

This executive order is not related to any real problem anyone is having or any important issue one may expect the government to address. It appears to have two divergent main objectives. On the one hand, it is an excellent distraction. Bored with waiting for any action related to Jeffrey Epstein? Here, have a constitutional crisis to keep you occupied. It costs the government nothing to pick a broad, divisive issue and drive a wedge in it so that those on either side will focus on each other rather than something the administration would rather not discuss.

The second, more complex objective is to chill speech before it happens. Flag burning isn’t some endemic problem sweeping the nation, but it is an unmistakable symbol for contempt towards the government. The administration’s position is crystal clear. They are prepared to use arrest and incarceration as responses to the exercise of free speech when the speech is of a type the government does not agree. The administration is wholly unconcerned for the legality or popularity of these measures. The point is to make you think twice before expressing disagreement with the government in any way, not just when it comes to flags.

The history of flag burning as protest shows the kind of elevated civic debate that is possible when the checks and balances of the coequal branches are in better working order. Those days are behind us. Getting trapped in an eddy of legalistic debate will not get us out of this one. The outcome of some far away court case with its heady arguments will do nothing to change the suppression of free speech in the here and now. We have arrived at the “use it or lose it” stage of existence for our constitutional rights.

CITES:

https://www.whitehouse.gov/presidential-actions/2025/08/prosecuting-burning-of-the-american-flag/

https://apnews.com/article/trump-executive-order-flag-burning-4628d588350db4f6baf10ae1d91f49c1

https://www.nytimes.com/2025/08/25/us/politics/trump-flag-burning-executive-order.html

https://www.foxnews.com/media/trumps-flag-burning-order-draws-rare-fire-from-conservatives

https://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/first-amendment-activities/texas-v-johnson/facts-and-case-summary-texas-v-johnson

https://constitutioncenter.org/blog/when-the-supreme-court-ruled-to-allow-american-flag-burning

https://en.wikipedia.org/wiki/Revolutionary_Communist_Youth_Brigade

https://www.villagepreservation.org/2022/07/07/william-kunstler-armchair-liberal-turned-radical-lawyer/

http://users.soc.umn.edu/~samaha/cases/texas%20v%20johnson,%20transcript.htm

https://firstamendmentmuseum.org/great-free-speech-moments-of-the-20th-century/

https://thehill.com/homenews/state-watch/5470458-man-arrested-burning-flag/