You’ve probably seen the posts. They blow up on Facebook and X every few months like clockwork. Usually, it’s a blurry photo of a politician or a screaming headline claiming that a new burning flag executive order has finally been signed to put people in jail for "desecrating" the stars and stripes. It gets people fired up. One side yells about patriotism; the other side yells about the First Amendment.
But here is the thing.
It’s not real.
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There is no executive order that makes burning the flag illegal. There can't be one. Not legally, anyway. If a President sat down today and scribbled their name on a piece of paper banning flag burning, it would be about as effective as an executive order banning the rain. It would be dead on arrival.
Why? Because the Supreme Court already handled this decades ago. And they didn't just "look at it"—they slammed the door and locked it. Twice.
The Legal Wall Blocking Any Burning Flag Executive Order
To understand why a burning flag executive order is basically a legal myth, you have to go back to 1989. This isn't just dry history; it’s the reason your social media feed is occasionally full of misinformation.
The case was Texas v. Johnson. Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas. He was protesting Reagan administration policies. Texas had a law on the books making it illegal to desecrate "venerated objects." Johnson was arrested, fined $2,000, and sentenced to a year in prison.
He appealed. It went all the way up.
The Supreme Court, in a 5-4 decision, ruled that burning the flag is "symbolic speech." Justice William Brennan wrote the majority opinion. He basically said that if there is a bedrock principle underlying the First Amendment, it’s that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
That was the end of it. Or so people thought.
Congress tried to get sneaky. They passed the Flag Protection Act of 1989 right after the ruling. It was a federal law designed to bypass the Texas decision. But the Court wasn't having it. In 1990, in United States v. Eichman, they struck down that federal law too.
Since then, the legal landscape hasn't changed. An executive order is a tool the President uses to manage the federal government. It is not a magic wand that can overrule the Bill of Rights. Even if a President wanted to issue a burning flag executive order, the very first time someone was charged under it, a federal judge would toss it out before lunch.
Why Do We Keep Hearing About It?
Politics is mostly performance art. You've seen the tweets. Over the years, various politicians—most notably Donald Trump—have suggested that flag burning should lead to a loss of citizenship or a year in jail.
In 2016, Trump tweeted: "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" He brought it up again in 2020. He brought it up again in 2024.
When a President or a candidate talks about this, it creates a "search spike." People go to Google. They type in "burning flag executive order" to see if something actually happened. Because the rhetoric is so strong, it creates an atmosphere where people assume a law or an order must exist.
Honestly, it’s a brilliant bit of political signaling. It costs nothing to say you want to protect the flag. It riles up the base. It makes the opposition defend something unpopular (burning the flag). But as far as actual policy goes? It’s a ghost.
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The Amendment Loophole (That Never Works)
There is technically one way to make a burning flag executive order or law stick. You’d have to change the Constitution.
You’ve probably heard of the "Flag Desecration Amendment." It’s been proposed in Congress dozens of times since the 90s. To pass, it needs a two-thirds vote in both the House and the Senate, and then it has to be ratified by 38 states.
It actually came really close in 2006. The House passed it. The Senate? It failed by a single vote. Just one.
Since then, the momentum has kinda fizzled out. Most legal scholars—even the conservative ones—are wary of carving out "exceptions" to the First Amendment. If you can ban burning a flag because it's offensive, what's next? Banning a protest sign? Banning a book? It’s a slippery slope that most lawmakers aren't willing to jump down, regardless of what they say on the campaign trail.
Practical Realities: Can You Be Arrested for Flag Burning?
So, if there’s no burning flag executive order, does that mean you can just go light a fire in the middle of the street?
Not exactly.
While the act of burning the flag as a protest is protected "speech," the way you do it isn't protected from other laws. This is where people get confused. If you steal someone's flag and burn it, you’re going to jail for theft and destruction of property. If you start a massive bonfire in the middle of a drought-stricken forest, you’re getting arrested for arson or violating fire codes.
Justice Antonin Scalia, one of the most conservative justices in history, was actually part of the majority that protected flag burning. He hated the act itself. He famously said, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."
That’s the nuance. You can hate the act, but the law protects the right to be "offensive."
State Laws Still on the Books
Interestingly, many states still have "flag desecration" laws in their physical rulebooks. If you go to a library and look up the state codes for places like Wisconsin or Arizona, you might still see laws saying it’s a misdemeanor to deface the flag.
Why are they there?
Because legislatures are lazy. Or, more accurately, removing them is a political nightmare. No state senator wants to be the person who sponsored the "Bill to Legalize Flag Burning." So, the laws stay in the books, but they are "unenforceable." They are "zombie laws." If a cop tried to use them, the case would be dismissed instantly based on the Texas v. Johnson precedent.
What to Do If You See News About a New Order
When you see a headline about a burning flag executive order, do a quick "sanity check."
First, check the source. Is it a government (.gov) website? Is it a major, reputable news outlet with a history of fact-checking? Most of the time, these stories come from "pink slime" news sites or hyper-partisan blogs designed to generate clicks and ad revenue.
Second, look for the text of the order. Every single executive order is numbered and published in the Federal Register. If you can’t find a number (like Executive Order 14067), it probably doesn't exist.
Third, remember the hierarchy of power. The President cannot overturn a Supreme Court ruling with an executive order. The only things that can overturn a Supreme Court ruling are a later Supreme Court ruling or a Constitutional Amendment.
Moving Forward: Actionable Insights
The conversation around flag burning isn't going away. It's too good of a "wedge issue" for politicians to let it die. But as a citizen, knowing the reality helps you navigate the noise.
- Verify before sharing: If a post claims a new executive order has "re-criminalized" flag burning, it’s false. Every time.
- Understand "Time, Place, and Manner": While flag burning is protected speech, you can still be cited for reckless burning, disorderly conduct, or violating local fire ordinances. The First Amendment isn't a "get out of jail free" card for public safety violations.
- Watch the Courts, not the White House: If you are genuinely concerned about the legal status of flag desecration, keep an eye on the Supreme Court's docket. Until they agree to hear a case that challenges Texas v. Johnson, the law of the land is settled.
- Separate Politics from Law: Politicians will often say they "will" do something that they legally cannot do. This is a common tactic to signal values to voters. Recognizing this gap between rhetoric and reality is key to digital literacy.
Don't get caught in the cycle of outrage over something that isn't legally possible. The American flag remains one of the most protected symbols in the world, ironically because the law allows people the freedom to treat it however they wish—even if that treatment makes most people's blood boil.