Against the White House's Executive Order on Flag Burning: A Violation of Core American Principles
A Nation Secure Enough to Tolerate Offense is Truly Free.
On August 25, 2025, the White House issued an executive order directing federal agencies to prioritize prosecuting acts of American flag desecration, framing it as a way to combat violence and restore "respect and sanctity" to the flag. As moderate Republicans, we champion a maximalist view of our fundamental rights, believing in absolute free speech with only the narrowest and rarest of exceptions.
This order oversteps the bounds of the presidency and violates the separation of powers enshrined in our Constitution. The boundaries of what counts as protected speech and conduct aren't for the president to redraw, but instead fall squarely under the jurisdiction of the Supreme Court. In Texas v. Johnson (1989), the Court ruled that flag burning is expressive conduct protected by the First Amendment, striking down a Texas law banning conduct similar to what this order seeks to enforce. The president can't unilaterally override that precedent by instructing law enforcement to arrest flag burners under the guise of preventing "imminent lawless action" or labeling it "fighting words." That's judicial overreach dressed as executive action.
Texas v. Johnson isn't just a legal footnote, it's a beacon of why America endures. Gregory Lee Johnson burned a flag during a 1984 protest against Reagan-era policies, an act of raw dissent that offended many but harmed no one. The Supreme Court, in a 5-4 decision, affirmed that such symbolic protest is shielded by the First Amendment. Justice Brennan's majority opinion captures this beautifully: "The flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today. The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong."
This ruling reminds us that the ability to desecrate the symbol of our freedom is woven into the freedoms it stands for. The flag waves not because we force reverence, but because we tolerate even the most provocative critiques, proving our democracy's unbreakable spirit.
When the government attempts to limit our freedoms through laws and regulations, the Supreme Courts applies one of three levels of review depending on how fundamental the right at stake is:
Rational basis (lowest level): For everyday regulations (like speed limits), the government just needs a reasonable goal and a logical way to achieve it. Easy to pass.
Intermediate scrutiny (middle level): For things like gender-based laws, the government needs an important goal and a substantially related method. Tougher, but doable.
Strict scrutiny (highest level): Reserved for fundamental rights like free speech. The government must prove a compelling interest (e.g., national security) and that its restriction is narrowly tailored in the least restrictive way possible. It must also show no other options work. This standard is incredibly hard to meet, many constitutional scholars call it the “kiss of death” for a law, because almost nothing survives it. It's designed to make fundamental rights nearly absolute, only yielding in rare, dire cases like yelling "fire" in a crowded theater to incite panic.
In Johnson, the Court held the government to its highest standard, strict scrutiny. As moderate Republicans, we embrace this standard as a maximalist shield protecting free speech and ensuring our liberties aren't chipped away by fleeting political whims.
The executive order sidesteps these First Amendment protections by instructing agencies to prosecute flag burning not as expression, but as a "statement of contempt, hostility, and violence" that "may incite violence and riot." It cites Texas v. Johnson selectively, noting the Court never protected desecration likely to cause "imminent lawless action" or amounting to "fighting words." The order directs the Attorney General to enforce laws against acts causing "harm unrelated to expression," like breaches of peace, and to refer cases to states for enforcement of local laws such as disorderly conduct or property damage.
In essence, it's telling law enforcement to arrest flag burners by characterizing their protest as incitement or disruption, not speech. But this ignores Johnson's core: Flag burning, absent actual violence, is protected precisely because offense alone doesn't justify suppression. This isn't enforcement, it's end-running the Constitution.
True freedom requires tolerating views we find detestable, that's the essence of free speech, which protects not just words but expressive conduct. I've spoken with military personnel on this issue, some of whom believe flag burning should be criminalized and others who believe that protection of this right is exactly what they fought for. In the words of Voltaire, "I disapprove of what you say, but I will defend to the death your right to say it."
This order fits the Trump administration's pattern of testing constitutional authority through incendiary actions that market their brand as "tough,” but we need leaders who uphold checks and balances, not erode them for political points.
In the end, the flag's power lies in what it represents, a nation strong enough to withstand dissent. Punishing flag burning weakens that strength. Let's persuade, not prosecute, and let freedom ring.