WASHINGTON — Conservatives split over President Trump’s Monday executive order cracking down on flag burning and threatening up to a year in prison for violators.
Some right-wing pundits saw the president’s action as an unconstitutional move, while other conservatives argued the president’s action was properly tailored to protect free speech.
“While I agree with the sentiment, it is unfortunately well-settled constitutional law that burning the flag is a matter of free speech and the executive does not get to create crimes,” Georgia radio host Erick Erickson posted on X.
President Trump’s new executive order banning flag burning drew rare criticism from conservatives on Monday. Getty Images
The executive order was slammed as “garbage” by one conservative commentator. APMeanwhile, Fox News host and former Justice Department official Mark Levin argued that the order didn’t run counter to US Supreme Court decisions permitting the flag to be burned.
“Unsurprisingly, most of the media jumped the gun and their favorite NeverTrumpers (among others) joined in the chorus, accusing the president of lawlessness, etc,” Levin noted.
“President Trump’s executive order on flag-burning is replete with qualifiers that strip it of any discernible meaning,” added Ed Whelan, the Ethics and Public Policy Center’s Antonin Scalia Chair in Constitutional Studies. “‘To the fullest extent possible’ sounds aggressive, but it actually means ‘within the bounds permitted by law.’”
The order authorizes Attorney General Pam Bondi to prosecute those who desecrate the Stars and Stripes only when that action involves the commission of other federal crimes — and provided the suspect’s First Amendment rights are not affected.
“This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws,” the order stated.
It also delegates state and local cases involving flag desecration to those authorities.
Not all members of the MAGA camp were convinced of the order’s lawfulness.
“I would never in a million years harm the American flag. But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire,” commentator Jesse Kelly said. “I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.”
The order followed months of protesters burning American flags at various anti-Israel and anti-ICE demonstrations. Corbis via Getty Images“Flag burning is vile but the government has no right to control speech or expression,” said radio pundit Dana Loesch.
Two Supreme Court cases — Texas vs. Johnson in 1989 and US v. Eichman the following year — ruled that incinerating the American flag was a constitutionally protected act of free speech.
The late conservative Justice Antonin Scalia sided both times with a 5-4 majority in those opinions.
“If it were up to me,” Scalia later said of the Texas v. Johnson ruling at a 2015 event, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
Trump faced unusual pushback from the right on social media after signing the order, as conservatives largely defended flag-burning as a First Amendment right. APVice President JD Vance responded to the controversy Tuesday morning.
“Few things,” Vance posted on X. “1) Antonin Scalia was a great Supreme Court Justice and a genuinely kind and decent person. 2) The President’s EO is consistent with Texas v. Johnson. 3) Texas v. Johnson was wrong and William Rehnquist was right.”
Rehnquist was serving as the high court’s chief justice at the time — and was in the minority on the Texas v. Johnson decision.
“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation,” Rehnquist wrote. “It does not represent the views of any particular political party, and it does not represent any particular political philosophy.
Trump talks to journalists after signing executive orders in the Oval Office on August 25, 2025. Getty Images“The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas,” the justice went on. “Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
Trump echoed the sentiment in his remarks to reporters in the Oval Office Monday.
“When you burn the American flag, it incites riots,” he argued, having first floated the action following destructive protests earlier this summer in Los Angeles, during which US flags were burned.
