Donald Trump vs. Antonin Scalia on burning the American flag | CNN Politics
Politics• 5 min read
Donald Trump vs. Antonin Scalia on burning the American flag
Analysis by Zachary B. Wolf, Aug 25, 2025
Pro-Palestinian demonstrators burn a US flag at Union Station in Washington, DC, during a protest against Israeli Prime Minister Benjamin Netanyahu’s visit to the US on July 24, 2024. The act drew bipartisan condemnation. Probal Rashid / LightRocket / Getty Images / File
President Donald Trump sees an epidemic of flag burning and says it needs attention.
“All over the country they’re burning flags,” Trump said Monday in the Oval Office, declaring it an important issue. He signed an executive order directing his Justice Department to investigate incidents of flag burning where laws are broken.
There are a few problems with his claim, the first of which is that it’s not at all clear they’re burning flags all over the country.
There are incidents of flag burning at protests, surely, such as when pro-Palestinian protesters burned an American flag alongside Israeli Prime Minister Benjamin Netanyahu’s address to Congress last year.
That burning drew bipartisan opposition. Then-Vice President Kamala Harris condemned the act and said the flag “should never be desecrated in that way.”
‘Sad’ Supreme Court protected flag burning as speech
But beyond the question of whether flags are indeed being burned all over the country is the fact that the Supreme Court, back in 1989, declared flag burning to be a protected form of speech under the First Amendment.
Trump acknowledged that decision by a “sad” Supreme Court, and his executive order is seemingly written to address the Supreme Court’s flag burning decisions.
The administration will try to prosecute other crimes, like violent crimes, hate crimes and crimes “against property and the peace,” as a way to deter flag burning, according to a White House fact sheet.
Trump spoke to that Supreme Court decision when he said the simple act of burning the flag is an incitement.
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