Everything Donald Trump says or does can be plotted on a three-dimensional graph where the axes are: fascist, stupid, and unconstitutional. I try to focus my attention on things that are flagrantly fascist and patently unconstitutional, but Trump’s recent flag burning executive order—ridiculously titled “Prosecuting Burning of The American Flag”—exists in the rare quadrant of flagrantly fascist, patently unconstitutional, and utterly stupid.

The order purports to “restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.” A three-by-five-foot American flag (which Google tells me is a standard size for an American home) costs around $25 bucks on Amazon. I don’t know a lot of people who like setting twenties on fire given Trump’s economy, so I am confident we are not currently experiencing an epidemic of flag burning such that we need an entire executive order to “restore respect” to the nylon. More likely, this executive order will create the problem it purports to solve. I, for instance, wasn’t thinking about burning an American flag, at least not while it’s still summer and I can use all that valuable lighter fluid for barbecuing. Now it’s on my list of small acts of noncompliance because… fuck him.

Apparently, I’m not the only one with the idea. A combat veteran burned a flag outside the White House just hours after Trump’s executive order to protest Trump’s executive order. Trump might as well have signed an order saying “don’t think about pink elephants.” His order all but guarantees more flags will be burned, largely by people who were not thinking of doing so before they were told they can’t.

According to the order, if I join the veteran and go full Born in the USA (listen to the lyrics, MAGA, just once, I beg of you), I can now be prosecuted “to the fullest extent permissible under any available authority.” But that is an inane sentence. The fullest extent of permissible prosecution for flag burning under any available current authority is “none.” Flag burning is constitutional. It is an expression of free speech. If I burn a flag, and that’s all I do, then I am within my constitutional rights to do so, for now.

Trump tries to get around this settled constitutional fact by authorizing Attorney General Pam Bondi to prosecute flag burning when it occurs “while causing harm unrelated to expression.” He then lists “violent crimes,” “hate crimes,” and “illegal discrimination” as some examples of activities that can trigger this executive order. But there again, the direction is—or should be—meaningless to the point of absurdity. It is already the case that you can be prosecuted for doing an illegal thing, unrelated to “expression,” even if you are also doing a legal thing under the First Amendment at the same time. I could be prosecuted for murder while wearing a corsage. I might argue in court that “I have a First Amendment right to wear flowers on any part of my body, your honor”—and I would be right. But the judge would likely say, “Sir, you are here for the gun in your hand, not the flowers on your wrist, motion to dismiss denied.”

This executive order is facially dumb, constitutionally unenforceable, and addresses a problem that does not exist. A reasonable reader might therefore ask, “So why the hell is it here?” While it’s always possible that Trump was just rereading his copy of Mein Kampf, trying to figure out what to do for Labor Day weekend, I think I see another reason. In the “purpose” section of this executive drivel, Trump states: “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.” Like all things with Trump, I think this is a way to give him another excuse for deporting people in his ongoing attempt to ethnically cleanse the country. And I think the Republican justices on the Supreme Court will, as per usual, give Trump what he wants.

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January 2026 Issue

I said that flag burning was settled constitutional law, but that’s not the whole story. It’s been settled since 1989, when the Supreme Court ruled on a case called Texas v. Johnson. Five years earlier, Gregory Lee Johnson had burned a flag outside of the Republican National Convention in Dallas to protest Ronald Reagan. He was convicted under Texas law for desecrating the flag. The Supreme Court overturned the conviction, finding flag burning to be protected speech.

But the case was not a slam dunk. The Supreme Court left open the possibility that flag burning could still be criminal if it were likely to inspire “imminent lawless action.” This is a well known caveat to all free speech cases. You can’t say anything, even protected political speech, if it is going to incite a crowd to immediately rise to violence (unless you’re Donald Trump speaking at the Ellipse and you encourage the crowd to storm the Capitol and attempt a coup d’état. Apparently that is okay). Moreover, Texas v. Johnson was a close case. It was decided 5–4, with noted Catholic theocrat Antonin Scalia breaking from Republicans to join the liberals and defend flag burning as free speech.

The current Supreme Court has shown no respect for its own precedents, even the ones it laid down only a few years ago. This gang of Republicans masquerading as judges will have no problem overturning a 36-year-old case that their side only barely lost anyway. If the Republican supermajority wants to make flag burning unconstitutional, it certainly can. The veteran arrested already could turn out to be the test case that allows the Supreme Court to overturn its own rulings. There is no such thing as “settled constitutional law” in front of the Roberts court. It’s all, as Ketanji Brown Jackson said last week, “Calvinball.” The Republicans make up the rules of the game as they’re playing it to make sure Trump wins every time.

Vice President and Derek Zoolander impressionist JD Vance has already laid the groundwork for this particular attack. He said on Twitter:

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 [the Republican chief justice who dissented in Texas v. Johnson] was right.

Vance is inviting the Roberts court to do what the Roberts court does best: rewrite the Constitution for culture-war reasons.

If the court does want to make burning the flag unconstitutional, it won’t even have to apply its new rule equally to everybody. The justices can set it up so that only foreigners or Black people or people of Palestinian descent are prohibited from burning the flag. They don’t have to overturn Texas v. Johnson outright, if they don’t want to. It wouldn’t be hard for this court, with these white-makes-right justices, to rule that the white combat veteran who burned the flag to protest an executive order against flag burning was exercising his free speech rights but hypocritically say that the Muslim who burns a flag in New York City to protest US involvement in the Middle East is “terrorizing” Americans and trying to cause a riot.

People who claim without context that flag burning is “clearly constitutional” clearly haven’t met this Supreme Court. The question is not what the law is but what Trump and the Republican justices want it to be.

My best legal thought is this: If you are foreign-born, don’t burn the flag. You’ll be in a gulag owned by crypto-bros long before John Roberts gets around to ruling that the First Amendment is just a collective hallucination and Trump has been anointed to relieve us of our misconceptions.

If you’re a white, cis-hetero, American-born male: Also don’t burn the flag. Try shooting it instead. Then see if the Supreme Court will uphold your Second Amendment rights.