For over 35 years, the burning of the U.S. flag has been constitutionally protected under the First Amendment. Now, President Donald Trump is moving to prosecute those who burn or otherwise desecrate the nation’s flag as a means of instigating violence or lawlessness. The president issued an executive order Monday entitled “Prosecuting Burning of the American Flag,” ordering the Department of Justice (DOJ) to seek out crimes committed in the process of flag-burning and prosecute them aggressively.

“Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly,” the president wrote in the executive order. He continued, “The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative.” He explained, “It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.”

The president’s executive order warned that burning the U.S. flag “may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”

Thus, the president ordered the DOJ to examine instances of flag-burning to identify crimes that can be prosecuted. “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,” he wrote. Furthermore, the DOJ is to work with the State Department and the Department of Homeland Security (DHS) to “deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States” in cases where “there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.”

Flag-burning has been a controversial subject for decades. In 1984, a communist activist named Gregory Lee Johnson participated in a protest against the policies of then-President Ronald Reagan, with activists marching through the streets of Dallas outside the Republican National Convention and vandalizing property. A U.S. flag was torn down from its flagpole, and Johnson doused it in kerosene before setting it alight. He was promptly arrested for violating a Texas statute outlawing flag-burning. At the time, 48 of the 50 states enforced similar statutes.

Johnson was convicted by a jury of his peers of violating the state’s prohibition on flag-burning, a conviction that the Texas Fifth Court of Appeals upheld. However, the Texas Court of Criminal Appeals overturned the conviction, ruling that the statute outlawing flag-burning violated Johnson’s First Amendment rights to freedom of speech. The court’s majority wrote that “a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.”

Texas appealed the case to the U.S. Supreme Court and, in 1989, five of the Supreme Court’s nine justices agreed with the Texas Court of Criminal Appeals that the state statute violated Johnson’s First Amendment rights as Johnson was burning the flag as a means of expressing his opinion. Justice William Brennan was joined by Justices Harry Blackmun, Anthony Kennedy, Thurgood Marshall, and Antonin Scalia in not only agreeing that the Texas statute was unconstitutional as applied to Johnson but was facially unconstitutional. Thus, the statutes, which 48 states had enacted protecting the U.S. flag from desecration, were undone.

Chief Justice William Rehnquist dissented from the majority and was joined in his dissent by Justices Byron White and Sandra Day O’Connor. “For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here,” he wrote. “No other American symbol has been as universally honored as the flag,” Rehnquist declared, cataloging the significance of the U.S. flag in times of both war and peace throughout the nation’s history.

Addressing Johnson’s actions in particular, Rehnquist observed, “Far from being a case of ‘one picture being worth a thousand words,’ flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” Turning to the majority’s arguments, he wrote, “The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of ‘designated symbols’ … that the First Amendment prohibits the government from ‘establishing.’ But the government has not ‘established’ this feeling; 200 years of history have done that.” Rehnquist continued, “The government is simply recognizing as a fact the profound regard for the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag.” The chief justice further wrote:

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. 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.”

Vice President J.D. Vance referred to Texas v. Johnson on social media, explaining that the president’s executive order is “consistent” with the Supreme Court’s decision. However, he added, “Texas v. Johnson was wrong and William Rehnquist was right.”

The burning of the American flag became something of a staple for protestors earlier this year during riots across the country opposing U.S. Immigration and Customs Enforcement (ICE) operations. In cities like Los Angeles and Seattle, American flags were burned while foreign flags were proudly waved by rioters attacking federal law enforcement agents. Last year, protestors in Chicago, New York, and Washington, D.C. tore down and burned U.S. flags as part of “Free Palestine” protests. After the Supreme Court overturned Roe v. Wade in 2022, American flags were also set ablaze by pro-abortion activists.