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Can the President Make Flag Burning Illegal?

By George Khoury, Esq. on November 30, 2016 | Last updated on March 21, 2019

Despite what president-elect Trump now thinks, burning and desecrating the United States flag is completely legal. On Tuesday, November 29, president elect Trump tweeted out that he believed people who burn the flag should lose their citizenship and face a year in prison. Could he ever make that happen?

Fortunately, the First Amendment protects flag burners, and the United States Supreme Court has confirmed the same. While there have been numerous attempts over the years to prohibit flag burning, none have been successful as the Supreme Court returns to the First Amendment protections and explains that burning the flag or desecrating the flag is an act of symbolic speech.

Burning the Flag Is Right and Righteous

While Trump's tweet may have you wondering whether it is right to burn the American flag, rest assured that burning the flag is actually the right way to dispose of a flag. When a flag is tattered, or in need of being disposed of, federal law actually recommends burning it. And, while there are numerous other little laws that pertain to respecting the flag, it is highly unlikely that violating any of these laws would get you arrested.

Additionally, burning a flag is seen as a strong act of protest, which implicates the First Amendment right to freedom of expression. So while there may be restrictions placed on what time of day, and where you can burn the flag, the act itself cannot be completely prohibited.

Can the President Change the Law on Flag Burning?

For those concerned that when Trump actually takes office he will issue an executive order prohibiting flag burning, you too can rest easy. Because the government is set up in three branches all designed to create a checks and balances system, the Supreme Court or congress would likely respond rather quickly to overturn such an executive order.

The First Amendment right to free expression is coveted by Americans of every political party, and it is unlikely that people from either side of the aisle would tolerate any change to the First Amendment.

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