An executive order requires the Justice Department to investigate and prosecute people for burning the American flag. The order notes the Supreme Court's 5-4 1989 ruling that the First Amendment protects flag burning as political expression, but asserts prosecution remains possible when flag burning is likely to incite imminent lawless action or constitutes fighting words. The order describes flag desecration as uniquely offensive and potentially inciting violence and riot. The attorney general is directed to prioritize enforcement of criminal and civil laws against harmful flag burning. Penalties cited include up to one year in jail and immigration consequences for foreign nationals.
The order the Republican president signed in the Oval Office acknowledged the court's 5-4 ruling in a case from Texas in 1989, but said there is still room to prosecute flag burning if it "is likely to incite imminent lawless action" or amounts to "fighting words." 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.
desecrating the American flag is "uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation - the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot." 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.
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