Can He Legally Do It?
President Trump has called for a one-year mandatory jail sentence for anyone caught burning the American flag, specifically referencing protests in Los Angeles, announcing plans to “work with senators” to pass a law to make that happen.
Legal Roadblocks
Supreme Court Precedent
In Texas v. Johnson (1989), the Supreme Court ruled 5–4 that flag burning is a form of symbolic speech protected by the First Amendment.
In United States v. Eichman (1990), Congress’s attempt to criminalize flag burning via the Flag Protection Act was struck down by the Court.
Current Federal Law
18 U.S.C. § 700 technically already outlaws flag desecration (including burning), with penalties up to one year in prison. But the Supreme Court has already declared any such statute unconstitutionalunder the First Amendment.
Flag Desecration Amendment
In order to criminalize flag burning, Congress would first need to pass a constitutional amendment restoring the power to prohibit it and then have it ratified by 3/4 of the states. Efforts to do so failed in 2006 by just one Senate vote, and similar proposals have stalled since. Trump has just announced plans to “work with senators” to get it done this time.
Can an Executive Order Override This?
An executive order cannot override Supreme Court precedent. The judicial branch has already ruled that flag burning is protected speech. Without a constitutional amendment and time-consuming legislative action, there is no short easy legal pathway for Trump to mandate jail time for flag burners.
The Bottom Line
Trump is proposing new legislation and pushing for criminal penalties but existing laws are currently unenforceable due to Supreme Court rulings.
No presidential decree or use of federal force can override the First Amendment protections or mandate jail time without Congress and the courts on board.
SUMMARY
Trump is baiting his base. This isn’t about patriotism. It is an airhorn blast to rile up the same MAGA patriots who chant about shooting migrants and locking up protesters. Trump is strategically manufacturing and cranking up outrage, handing them a target, dangling law-and-order vengeance like MAGA candy. It’s not just dog-whistling. It’s hog-calling. Trump’s goal isn’t to enforce the law. He knows he can’t. He wants to weaponize a mob, keep them agitated, and aim them like a state instrument at anyone he deems so un-American as to criticize him. If he can’t jail the flag-burners, he’ll settle for turning his followers against everyone who doesn’t salute him the way he likes.
Historic Precedent
Adolf Hitler’s Nazi regime also took very similar steps to criminalize flag desecration. In fact, flag protection was one of the early symbolic laws used to consolidate authoritarian control.
Nazi Germany – Flag Protection Law (1935)
Date enacted: September 15, 1935 (same day as the Nuremberg Laws).
Law name: Reichsflaggengesetz (Reich Flag Law).
Its Goals and Reach
Made it a criminal offense to insult the national flag, including burning, defacing, or mocking it.
Applied to both the swastika flag (the official national flag from 1935 onward) and other Nazi symbols.
Penalties included prison terms and fines, depending on the perceived severity of the insult.
Summary of Nazi Germany’s Reichsflaggengesetz
This law was not about patriotism but about suppressing dissent and mandating ideological loyalty. Jews and political opponents were often accused of “flag insults” as a pretext for arrest, public shaming, or worse. It became one of many “symbol laws” in Nazi Germany, alongside mandatory salutes, anthem rituals, and uniform codes that elevated national symbolism over rights. Both regimes, Germany in the 1930s and Trump 2025, used and are using flag veneration as a test of loyalty. Both tried to criminalize symbolic speech. Both positioned dissent as an attack on the nation itself.
SOURCE LINKS
https://nypost.com/2025/06/10/us-news/trump-tells-miranda-devine-la-riot-flag-burners-should-get-year-in-prison-and-newsom-could-be-charged-in-theory
https://www.washingtonpost.com/politics/2025/06/10/trump-military-protests-force
https://www.law.cornell.edu/supremecourt/text/491/397
https://www.law.cornell.edu/supremecourt/text/496/310
https://www.law.cornell.edu/uscode/text/18/700
https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12
