President Donald Trump signed an executive order instructing the Justice Department to investigate and prosecute individuals who burn the American flag under circumstances that may fall outside First Amendment protection. The order acknowledges the 1989 Supreme Court 5-4 ruling protecting flag burning as political expression but asserts prosecutions remain possible when flag burning is likely to incite imminent lawless action or constitutes fighting words. The order calls on the attorney general to prioritize enforcement of criminal and civil laws against flag burning that causes harm unrelated to the First Amendment. It prescribes up to one year in jail without early release and threatens visa revocation and deportation for foreign nationals.
In that case, the justices ruled 5-4 that the First Amendment protects flag burning as legitimate political expression. The late Justice Antonin Scalia, the conservative icon who Trump has repeatedly praised, was in the majority. Trump said Monday that burning the U.S. flag incites riots at levels we've never seen before, with some people going crazy over burning it and others expressing anger at people for burning it.
The order calls on the attorney general to prioritize enforcement to the fullest extent possible of criminal and civil laws against flag burning that cause harm unrelated to the First Amendment. Trump said the penalty for flag-burning would be one year in jail with no opportunity for early release. The order also states that foreign nationals who burn the flag could face having their visas, residency permits, naturalization proceedings and other immigration benefits revoked.
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