In a landmark 1989 ruling, the U.S. Supreme Court ruled that burning the American flag in protest is protected speech under the First Amendment.

Now, the Trump administration aims to test that. President Donald Trump signed an executive order on Aug. 25 directing his administration to prosecute people who burn American flags.

The order describes the flag as the country's "most sacred and cherished symbol" and said its desecration is "uniquely offensive and provocative."

Attorney General Pam Bondi said during a signing ceremony that the administration could prosecute flag burnings "without running afoul of the First Amendment."

Here’s what to know about the order and how the First Amendment applies:

What does the executive order say about flag burning?

The order directed the attorney general to prioritize enforcing laws against flag-burning incidents that "violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment."

Examples of such acts include violent crimes, hate crimes and property crimes.

It goes on to say that the administration can deny or revoke visas or other immigration benefits as well as pursue deportation "whenever 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."The order asserts that such action is constitutional.

"Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to 'fighting words' is constitutionally protected," it said.

What has Trump said about flag burning?

Trump has long condemned flag burnings.

Following protests after his first presidential election win in 2016, Trump said on social media that those who burn the American flag should face consequences of “perhaps loss of citizenship or year in jail!”

He made similar statements following protests over the murder of George Floyd in 2020, and criticized demonstrators who burned an American flag while protesting Israeli Prime Minister Benjamin Netanyahu’s visit to Congress in July 2024.

The following month, Trump reiterated that flag burning should be criminalized in a speech at the National Guard Association in Detroit.

“I want to get a law passed,” he said. “Everyone tells me, ‘Oh, sir, it’s very hard.’ You burn an American flag, you go to jail for one year. Gotta do it, we gotta do it.”

“They say, ‘Sir, that’s unconstitutional,’ ” he said. “Well make it constitutional. We’re gonna make it constitution(al).”

He further touted his proposal for a one-year jail sentence for flag burners following immigration raid protests in Los Angeles in June.

Is flag burning currently protected by the First Amendment?

Yes. In Texas v. Johnson, a landmark First Amendment case in 1989, the Supreme Court ruled 5-4 in favor of a man who burned the flag while protesting then-President Ronald Reagan’s administration.

The decision upheld a Texas Court of Appeals ruling that reversed Gregory Lee Johnson’s conviction under a Texas law banning flag desecration.

The court found that the conviction violated Johnson’s First Amendment rights, which it said are not limited to verbal or written speech. While the ruling said states may seek to prevent “imminent lawless action,” it added that actions such as Johnson’s are and should be a protected right.

“We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today,” Chief Justice William Brennan wrote in the majority opinion. “Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.”

What happens now?

The issue, like many of Trump’s executive orders, will likely be fought over in court.

Following Trump's Detroit speech in August 2024, the Foundation for Individual Rights and Expression (FIRE) said a constitutional amendment banning flag burning would be followed by “years of expensive litigation, varying and conflicting judicial interpretations, selective enforcement – oh, and more flag burning.”

The organization said on Aug. 25 that Trump doesn't have the "power to revise the First Amendment with the stroke of a pen" and that flag burning is a constitutionally protected action that the government cannot prosecute people for.

"You don't have to like flag burning," FIRE Chief Counsel Bob Corn-Revere said. "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."

Kevin Goldberg, vice president of the Freedom Forum, also said the order could prompt some to test the administration's vow to prosecute flag burnings.

In such cases, the government would have the burden of showing that their actions are not based on the viewpoint being expressed.

“If there’s any indication this is not content-neutral, that they really are going after people simply because they don’t like the act of flag burning, then this is unconstitutional,” Goldberg said.

The Trump administration insists it can enforce the executive order without violating the First Amendment, and the order states that the court "has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to 'fighting words' is constitutionally protected."

“What happens when you burn the flag, the area goes crazy," Trump said. “When you burn the American flag, it incites riots."

Goldberg noted that not all flag burnings are an act of incitement, which he said courts have had a fairly narrow definition of over the years.

Potential outcomes of litigation over Trump’s order include a court broadening that longtime understanding or the Supreme Court revisiting the topic, which Goldberg said could mean “opening a pandora’s box” if the American flag is deemed to warrant special protection as a national symbol.

“That’s the slipperiest of slopes to me,” Goldberg said. “If you create that, where do you go from there? What else is suddenly off-limits when it comes to dissent? And I think the court recognizes that.”

Contributing: Bart Jansen

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at bjfrank@usatoday.com.

USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.

This article originally appeared on USA TODAY: Is flag burning protected speech? What to know about Trump's order

Reporting by BrieAnna J. Frank, USA TODAY / USA TODAY

USA TODAY Network via Reuters Connect