President Donald Trump signed an executive order Aug. 25, 2025, cracking down on suspects who desecrate the American flag. (Getty Images)
The 1989 case was centered on political protester Gregory Lee Johnson, who burned the American flag in 1984 outside the Republican National Convention in Dallas in protest of President Ronald Reagan's re-election.
"America, the red, white, and blue, we spit on you," protesters chanted as Johnson lit the flag on fire, according to details in the case, called Texas v. Johnson.
Johnson was charged under the Texas Venerated Objects Statute, a state law that prevented individuals from vandalizing respected objects such as the U.S. flag. Johnson was found guilty in 1985 and sentenced to one year behind bars and a $2,000 fine, but appealed the ruling.
The Supreme Court agreed to hear the case in 1989, with the nation's highest court ruling in a 5–4 decision that burning the American flag was protected speech under the First Amendment. The Supreme Court held a conservative majority at the time.
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Justice William J. Brennan, a Democrat nominated by former President Dwight Eisenhower, issued the majority opinion, and argued "that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by — as one witness here did — according its remains a respectful burial," the majority opinion read. "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represent."
President Trump's executive order on flag desecration calls on the attorney general, Pam Bondi, to launch legal efforts to clarify "the scope of the First Amendment." (Francis Chung/Politico/Bloomberg via Getty Images)
Smith pointed to two dynamics to watch out for with regard to a potential flag-burning case landing on Supreme Court's docket in the future: that some justices have expressed "some concern that potentially expressive conduct has been read too broadly," and how the justices will apply stare decisis, which is legal doctrine outlining courts should follow established precedents, such as the 1989 ruling.
"I think a couple of things are happening here," he said. "I think some justices have expressed some concern that potentially expressive conduct has been read too broadly. Things that are really conduct, not speech, have been read to be protected, and maybe they should not be protected, as protected as they have been in the past."
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"The other interesting dynamic, I think that you should watch for, is how certain justices will apply what's known as stare decisis, and essentially that's the fancy Latin term. It means that 'they decided,’" Smith continued. "Several times recently, Chief Justice Roberts in particular, has said that even though he disagrees on the merits with the … decision the Supreme Court is reaching, he has joined the majority anyway because he believes stare decisis should apply and the court should not overturn or revisit its previous decisions in this area. Even though he may subsequently disagree with it."
Trump celebrated the executive order during the Monday signing ceremony in the Oval Office, saying the 1989 Supreme Court ruling protecting flag burning was made by a "very sad court."
"Flag burning. All over the country, they're burning flags. All over the world, they burn the American flag," he said. "And as you know, through a very sad court, I guess there was a 5 to 4 decision. They called it freedom of speech."
President Donald Trump lamented how U.S. flags have been burned by protests on U.S. soil and abroad. (Mark Schiefelbein/The Associated Press)
"But there's another reason, which is perhaps much more important," he said. "It's called death. Because what happens when you burn a flag is the area goes crazy. If you have hundreds of people, they go crazy."
"You could do other things. You can burn this piece of paper," he said. "But when you burn the American flag, it incites riots at levels that we've never seen before."
First Amendment groups such as the Foundation for Individual Rights and Expression slammed the executive order in comment provided to Fox News Digital, saying Trump does not have the "power to revise the First Amendment with the stroke of a pen."
"Flag burning as a form of political protest is protected by the First Amendment," Foundation for Individual Rights and Expression Chief Counsel Bob Corn-Revere said in Monday comment. "That’s nothing new. While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it "uniquely offensive and provocative."
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"You don’t have to like flag burning," he added. "You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say,."
https://www.foxnews.com/politics/trump-flag-burning-executive-order-could-flip-first-amendment-its-head-new-court