Burning Issues: Potential Viewpoint Discrimination In Trump’s Flag Desecration Order

by Faith Howard, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

The American flag has long been a symbol of the United States, representing both social and military values throughout the Nation’s history.¹ For example, students recite the Pledge of Allegiance to the flag before school, spectators salute it at sporting events, and there is even a federal holiday dedicated to honoring the flag.² Additionally, the flag is prominently displayed on soldiers’ uniforms, draped over veterans’ coffins, and flown over military bases around the world.³ Because many Americans have varied connections with the flag, since the Vietnam era, some individuals have chosen to burn it as a form of political protest to draw attention to various political and societal issues.⁴ This act often sparks controversy, raising concerns regarding whether burning the American flag is considered a protected form of expressive speech or if individuals who engage in the act should be subject to civil or criminal prosecution.⁵ While many people in the United States believe that burning the flag should be prohibited due to the disrespectful nature of the act, others view it as an essential form of free speech that deserves First Amendment protection, believing that a different outcome would threaten other constitutionally protected but disfavored speech.⁶

Since 2016, President Trump has been a vocal opponent of flag burning, frequently using platforms like X to express his dislike for the act.⁷ Recently, however, his stance on the issue has reached an unprecedented level. On August 25, 2025, Trump announced that he had signed an executive order aimed at penalizing individuals who desecrate the American flag.⁸ Given that previous Supreme Court rulings have upheld flag burning as a form of expression protected under the First Amendment, the executive order raises significant questions about the potential constitutional challenges it may face in federal courts.⁹

This Article examines President Trump’s executive order titled “Prosecuting Burning of the American Flag.” Part II provides an overview of executive orders and explores key First Amendment concepts, including content-based, and content-neutral restrictions, as well as viewpoint discrimination. It then reviews the Supreme Court’s treatment of expressive conduct as a form of speech, focusing on its ruling in Texas v. Johnson and United States v. Eichman, and concludes with a brief overview on the executive order itself. Part III discusses the potential legal challenges the order may face in federal court once carried out, particularly in relation to the First Amendment’s protection against viewpoint discrimination. Finally, Part IV concludes by identifying that despite the executive order’s claim to fall within constitutional bounds, a federal court will likely find it unconstitutional.

II. Background

A. Executive Orders

The use of executive orders by United States presidents is a long-standing practice, dating back to George Washington’s administration.¹⁰ The constitutional basis for this authority is Article II, Section 3 of the U.S. Constitution, which empowers the president to ensure that “federal laws are faithfully executed.”¹¹ An executive order is a formal, written directive from the president that instructs federal officials and agencies within the executive branch to take specific actions to implement laws passed by Congress.¹² While executive orders cannot supersede federal laws or statutes, they exert significant influence over government operations.¹³ As such, their use can be controversial depending on how they are interpreted and ultimately implemented in practice and prosecution.¹⁴

Different avenues within the U.S. government’s system of checks and balances can overturn an executive order once it is issued.¹⁵ The president who issued the order, or any subsequent president, can unilaterally revoke it by issuing a new order that overrides the previous one.¹⁶ Congress has two primary methods for invalidating an executive order.¹⁷ It can pass legislation explicitly overturning the order, provided it can override a presidential veto with two-thirds vote in both the House of Representatives and the Senate.¹⁸ Alternatively, it can withhold the funding necessary for the order’s implementation.¹⁹ The judicial branch also checks executive power and can strike down an executive order if it exceeds the president’s constitutional authority or violates the Constitution.²⁰ In some cases, legal challenges may not target the order itself but instead focus on the regulations enacted under it or the way executive officials have interpreted it.²¹

B. Content-Based Restrictions, Content-Neutral Restrictions, and Viewpoint Discrimination

Given the various ways presidents can use executive orders, federal courts do not apply a uniform approach when reviewing them.²² Instead, the approach depends on the type of challenge brought against the order.²³ Furthermore, the Supreme Court has not established a consistent standard for the level of scrutiny that federal courts must apply in First Amendment cases involving executive orders, rather courts must determine whether the directives in the order are content-based or content-neutral since this distinction determines the level of judicial scrutiny they apply.²⁴

Content-based restrictions regulate speech based on its message and as a result trigger strict scrutiny analysis.²⁵ Thus, to uphold an executive order under strict scrutiny, the government must prove that its directive is narrowly tailored to achieve a compelling interest.²⁶ In contrast, content-neutral restrictions regulate speech without regard to its substance, generally focusing on aspects such as time, place, and manner.²⁷ These types of restrictions are subject to intermediate scrutiny, which requires the government only to show that the restriction advances a substantial or important interest and does not substantially burden more speech than necessary.²⁸

Furthermore, another facet federal courts often must address is a specific subset of content discrimination known as viewpoint discrimination. According to the Supreme Court, viewpoint discrimination occurs when the government regulates speech based on a specific motivating ideology, opinion, or the perspective of the speaker.²⁹ Viewpoint discrimination is a particularly blatant and egregious form of content discrimination because it directly suppresses the diversity of ideas that the First Amendment seeks to protect.³⁰ One federal court has even described it as the “greatest First Amendment sin” noting that it not only regulates subject matter but also targets speakers who express specific views on that subject.³¹ Because viewpoint discrimination explicitly targets particular messages, courts presume such actions to be unconstitutional.³²

C. Flag Burning Precedent: Texas v. Johnson and United States v. Eichman

The Supreme Court’s most notable stance on flag burning came in its 1989 decision in Texas v. Johnson.³³ The case centered on Gregory Lee Johnson who during a political demonstration to protest the Reagan administration’s policies burned an American flag in front of Dallas City Hall.³⁴ Although no one was injured, several witnesses reported that they were deeply offended.³⁵ Following the protest, Johnson was the only individual charged with desecration of a venerated object, in violation of a Texas statute.³⁶ At trial, he was convicted and sentenced to one year in prison and fined $2,000.00.³⁷ Johnson appealed his conviction, which the Court of Appeals for the Fifth District of Texas at Dallas affirmed.³⁸ This decision was later reversed by the Texas Court of Criminal Appeals which held that the government’s actions in punishing Johnson were inconsistent with the First Amendment under these circumstances because his actions were protected symbolic speech.³⁹ The State however, argued that Johnson’s conviction for engaging in symbolic speech was warranted and asserted two key interests: preventing breaches of the peace and preserving the flag as a symbol of national unity.⁴⁰ Ultimately, the criminal court held that neither interest supported Johnson’s conviction.⁴¹

When the case reached the United States Supreme Court, the central issue was whether Johnson’s act of burning the American flag was a form of expressive conduct protected by the First Amendment.⁴² To address this, the Court established a pivotal two-part test for determining when an act qualifies as “expressive conduct” and therefore garners First Amendment protection.⁴³ To meet this standard, the Court asked: (1) Is there an intent to convey a particular message and (2) is there a considerable likelihood that the viewer will understand the message?⁴⁴ The Court concluded that both criteria were satisfied in Johnson’s case.⁴⁵

In its analysis, the Court clarified that expressive conduct is not unlimited and that states may regulate such conduct if the regulation serves a legitimate government interest that is unrelated to the suppression of expression.⁴⁶ Texas argued once again that its statute criminalizing flag burning was justified by two interests: preventing breaches of the peace and preserving the flag as a symbol of unity.⁴⁷ However, the Court found the first argument inapplicable, as no breach of the peace had occurred, and the only evidence the state offered at trial to this point was the testimony of individuals offended by the flag burning.⁴⁸

On this point, the Court found that the State’s position amounted to a claim that an audience that takes serious offense to a particular expression is necessarily likely to disturb the peace, and that such expression may therefore be prohibited.⁴⁹ The Court noted, however, that prior precedent did not recognize this presumption and emphasized that the government may not assume every expression of a provocative idea will incite violence.⁵⁰ If the Court were to accept that every act of flag burning necessarily possesses “the potential for a breach of the peace,” then it would effectively allow every flag burning to eviscerate the Court’s Brandenburg v. Ohio holding.⁵¹

In addressing the State’s second asserted interest in preserving the flag as a symbol of nationhood and unity, the Court referred to its earlier decision in Spence v. Washington.⁵² In Spence, the Court analyzed a similar governmental interest in maintaining the flag as a special symbol.⁵³ It held that such an interest “is directly related to expression in the context of activity,” such as the act of affixing a peace symbol to the flag.⁵⁴ The Court explained that this same interest was implicated in Johnson’s case, as the State argued that such conduct would lead people to believe that the flag no longer stands for nationhood and national unity but instead less positive concepts.⁵⁵ The Court, however, found that these concerns by the State arise only when a person’s treatment of the flag conveys a message, and therefore are related “to the suppression of free expression.”⁵⁶ Consequently, it ruled the statute unconstitutional, finding that its true purpose was to suppress expressions that society finds offensive, which is not a constitutionally valid justification under the First Amendment.⁵⁷

Following its decision in Texas v. Johnson, the Supreme Court addressed the issue of flag burning once again just a year later in United States v. Eichman.⁵⁸ In response to the Johnson ruling, Congress passed the Flag Protection Act of 1989, which criminalized the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag, with the exception of conduct related to the disposal of a “worn or soiled” flag.⁵⁹ The defendants in Eichman were prosecuted in their respective district courts for violating the Act, where they all challenged it, arguing the Act violated the First Amendment.⁶⁰ On appeal to the Supreme Court, the central issue was whether the Flag Protection Act differed sufficiently from the Texas statute struck down in Johnson to be constitutionally used to prohibit the defendant’s expressive conduct.⁶¹ The Court held that it did not.⁶²

In an attempt to establish the Act’s constitutionality, the government argued that it differed from the statute in Johnson because it did not target expressive conduct based on the content of the message.⁶³ Instead, the Act prohibited conduct that damaged or mistreated the flag, regardless of the actor’s motive, intended message, or the likely effect on onlookers.⁶⁴ In contrast, the statute in Johnson prohibited acts “that the actor knows will seriously offend onlookers.”⁶⁵ The government further contended that its interest lay in “protecting the physical integrity of the flag under all circumstances” in order to safeguard the flag’s identity as “the unique and unalloyed symbol of the Nation.”⁶⁶ However, the Court was ultimately not persuaded.⁶⁷

In its analysis, the Court acknowledged that although the Act was not an explicit content-based restriction, it was nevertheless clear that the government’s interest was still “related” to the suppression of free expression.⁶⁸ In reaching this conclusion, the Court emphasized that the government’s asserted interest in protecting the “physical integrity” of a privately owned flag rested upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals.”⁶⁹ This made it evident that the government’s actions were aimed at suppressing specific expressive conduct, rendering the restriction effectively content-based.⁷⁰

Additionally, in examining the Act’s language, the Court noted that each specified term, aside from the possible exception of “burns” unmistakably connotes disrespectful treatment of the flag and suggests focus on acts that are likely to damage the flag’s symbolic value.⁷¹ While the Court acknowledged that the Act was somewhat broader than the Johnson statute, it concluded that it nonetheless still possessed the same fundamental flaw, as it “suppresses expression out of concern for its likely communicative impact.”⁷²

D. Brief Overview of Trump’s Executive Order

On August 25, 2025, President Trump issued an executive order titled “Prosecuting Burning of The American Flag.” (“the Order”).⁷³ Trump states that the motive or purpose behind the Order is to “restore respect and sanctity to the American Flag,” because it is the “most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength.”⁷⁴ It argues that desecrating this “special symbol” is “uniquely offensive and provocative” and constitutes a “statement of contempt, hostility, and violence against our Nation.”⁷⁵ The Order further states that burning the flag as a “representation of America, may incite violence and riots.”⁷⁶

Additionally, the Order acknowledges the Supreme Court’s ruling in Texas v. Johnson but maintains that it does not violate this precedent.⁷⁷ It asserts that “the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that an action amounting to ‘fighting words’ is constitutionally protected.”⁷⁸

The Order itself directs the Attorney General to “prioritize the enforcement” of “acts of American Flag desecration that violate applicable, content-neutral laws” that are “causing harm unrelated to expression.”⁷⁹ The Order further specifies that if the Department of Justice, or another federal department or agency, finds that flag desecration violates a state or local law, such as open burning, disorderly conduct ordinances, or destruction of property laws, it should refer the case to the appropriate state or local authorities for potential action.⁸⁰ Additionally, the Order provides that the Attorney General shall “vigorously prosecute to the maximum extent permitted by the Constitution” individuals who violate U.S. laws “in ways that involve desecrating the American Flag” and take action to “clarify the scope of the First Amendment exceptions in this area.”⁸¹

III. Discussion

As previously mentioned, there are various ways in which challenges to an executive order might be brought before a federal court.⁸² This section specifically addresses potential challenges stemming from the President’s directive to the Attorney General and other executive agencies to implement the Order, as well as possible enforcement issues.⁸³ In March of this year, the Fourth Circuit granted the government’s request to stay a nationwide preliminary injunction that had blocked some key provisions of President Donald Trump’s DEI-related Executive Orders 14151 and 14173.⁸⁴ In doing so, the court emphasized that “[w]hat the Orders say on their face and how they are enforced are two different things.”⁸⁵ The court recognized that the DEI lawsuit could raise serious First Amendment concerns, but found that because the plaintiffs had not directly challenged a specific agency action, immediate judicial review on First Amendment grounds would be premature.⁸⁶ If other circuits adopt similar reasoning, the legal issues surrounding Trump’s executive order on flag burning are likely to arise only after an agency attempts enforcement.Therefore, the following discussion focuses on the viewpoint discrimination challenges the Order might face once it is carried out.

A. The Issue with the Government’s Motive

As demonstrated by the cases previously discussed, a central concern in Supreme Court precedent regarding the constitutionality of flag burning restrictions is the government’s underlying motive for imposing such restrictions, as courts must remain especially vigilant to ensure that these policies do not amount to viewpoint discrimination.⁸⁷ For example, in Texas v. Johnson, the Court emphasized that the government’s interest in preserving the flag’s symbolic value is “directly related to expression in the context of activity.”⁸⁸ As a result, the State’s argument that its statute was unrelated to the suppression of free expression was unconvincing and ultimately rejected.⁸⁹ Similarly, in United States v. Eichman the Court acknowledged that although Congress attempted to frame the Flag Protection Act in a way that avoided explicit content-based restriction, it was nevertheless evident that the government’s interest remained tied to the suppression of free expression, rendering it unconstitutional.⁹⁰ Because federal courts are bound by Supreme Court precedent, any challenge to a new restriction, such as one based on an executive order, would prompt a similar analysis of government motive, which is where issues might arise for President Trump.

For example, in the Order, President Trump explicitly states that its purpose is to recognize the American flag as a “special symbol in our national life,” meant to unite and “represent all Americans of every background and walk of life.”⁹¹ He further characterizes flag desecration, which involves physically damaging or disrespecting the United States flag, as a statement of “contempt, hostility, and violence” against the United States.⁹² According to the Order, such acts represent the clearest possible expression of oppression against the political union that “preserves our rights, liberty, and security.”⁹³ Much like the government’s motives in Johnson and Eichman, which involved efforts to uphold flag desecration laws by arguing the need to preserve the flag’s symbolic value, President Trump justifies the Order citing a perceived need to preserve the flag as a “valued symbol.”⁹⁴ Additionally, by using language such as “statement of contempt,” the Order suggests that the government’s reasoning is rooted in its disapproval of the expressive message behind the act, particularly given its emphasis on the flag’s symbolic value.⁹⁵ This implies that prosecutions for flag burning would continue to target its symbolic meaning rather than the physical nature of the act, indicating that these efforts may be motivated not by a neutral application of the law, but by a desire to punish certain viewpoints. As a result, the Order may raise issues like those in Johnson and Eichman.

B. Content-Neutral Restrictions Must Account for Viewpoint Discrimination in Enforcement

One of the safeguards that President Trump proposes to ensure that the Order complies with what the First Amendment requires is a directive that the Attorney General prioritize enforcement against acts of American flag desecration only when such acts violate applicable laws that are “content-neutral” and where the harm caused is unrelated to the expression itself.⁹⁶ For instance, as outlined in the Order, the type of laws that the Attorney General, Department of Justice, and other executive departments or agencies are instructed to rely on include state or local laws such as open burning restrictions, disorderly conduct statutes, or laws prohibiting property destruction.⁹⁷ These laws are specifically intended to serve as the basis for prosecuting acts of flag desecration.⁹⁸

However, as Eugene Volokh points out, while laws banning open burnings, disorderly conduct, and property destruction are constitutionally permissible because they are content-neutral, the problem arises in the way the Order applies them.⁹⁹ For instance, the Order specifically targets flag desecration that violates these laws because the act conveys what it describes as a “uniquely offensive” and “provocative statement,” expressing “contempt, hostility, and violence” against the United States.¹⁰⁰ According to Volokh, this enforcement provision then transforms what was seemingly content-neutral into content-based, or more precisely a viewpoint based enforcement policy.¹⁰¹ By directing executive officials to prioritize prosecution for flag desecration based on the message that President Trump is arguing that it conveys, the Order risks enabling enforcement that discriminates against a particular viewpoint through selective enforcement.¹⁰² This raises significant concerns, because even if a law does not facially discriminate based on viewpoint, the discriminatory enforcement of a content-neutral law still violates the First Amendment.¹⁰³

In his discussion, Volokh draws on examples supporting this premise, noting how the Supreme Court in McCullen v. Coakley addressed how speech restriction outside an abortion clinic, even if facially content-neutral, could raise First Amendment viewpoint discrimination concerns if the police failed to enforce it equally against clinic escorts and instead selectively targeted anti-abortion protesters.¹⁰⁴ He also discusses Frederick Douglass Found. v. D.C., which involved a First Amendment challenge based on alleged viewpoint discrimination of D.C.’s defacement ordinance.¹⁰⁵ In this case, the D.C. Circuit held that the city’s decision not to arrest Black Lives Matter protesters who painted messages on the streets in violation of the ordinance, while arresting two pro-life advocates for using chalk to write ‘Black Pre-Born Lives Matter’ on the sidewalk, amounted to unconstitutional viewpoint discrimination due to its selective enforcement.¹⁰⁶

Thus, following this same logic, the Order could potentially run afoul of the First Amendment because it does not propose to prosecute all instances of open burning restrictions, disorderly conduct laws, or destruction of property laws equally.¹⁰⁷ Instead, it targets enforcement efforts specifically against acts of flag desecration while potentially disregarding similar violations, on the grounds that flag burning is “a statement of…hostility.”¹⁰⁸ Given that this would not be a neutral application of the laws, despite the Order’s claim to rely on content-neutral laws, it could likely be found to constitute a selective enforcement plan that amounts to viewpoint discrimination.¹⁰⁹

IV. Conclusion

Because the American flag holds a wide range of meaning for individuals across the United States, the controversy surrounding flag burning continues to intensify. Just hours after President Trump signed the Order, an individual was arrested for burning a flag near the White House in protest.¹¹⁰Such an incident suggests that legal challenges to the Order may soon arise. Although the Order claims to comply with the First Amendment, the government’s stated purpose for the act and its justification for prosecution could lead a federal court to find it unconstitutional on the grounds of viewpoint discrimination. Until the issue is ripe for review, it is sure to remain hot.

Cover Photo by Cristina Glebova on Unsplash

Faith Howard

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