The flag can be used to express dissent, as much as it can be displayed in a show of patriotism. The Supreme Court has been emphatic about this for decades and repeatedly has held that the government cannot constitutionally punish flag desecration. But on August 25, 2025, President Trump issued an Executive Order titled, “Prosecuting Burning of the American Flag.” The Executive Order is either meaningless because it never will be used, or it is unconstitutional as violating the First Amendment.

The Executive Order states, “To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.”

The law, though, is clear that the government cannot punish desecrating the flag when it is done to express a message. In Spence v. Washington, the Supreme Court overturned the conviction of an individual who taped a peace sign on an American flag after the killing of students at Kent State. He was convicted of violating a state law prohibiting flag desecration. The Court said that “this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government.”  The Court emphasized that the protestor’s “message was direct, likely to be understood, and within the contours of the First Amendment.”

The Court went even further in 1989 in Texas v. Johnson, where it declared unconstitutional a state law prohibiting any person to “deface, damage or otherwise physically mistreat” a flag in a way that the actor knows “will seriously offend one or more persons likely to observe or discover his action.” An individual was convicted of violating the law and sentenced to a year in prison for burning a flag as part of a protest at the Republican National Convention.