How do constitutional law experts expect federal courts to rule on prosecutions under Trump's flag burning executive order?

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Federal courts are poised to strike down any prosecutions under President Trump’s August 25, 2025 executive order criminalizing flag burning as unconstitutional. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court held that burning a flag in political protest is "expressive conduct" protected by the First Amendment (). Congress’s Flag Protection Act of 1989 met the same fate in United States v. Eichman, 496 U.S. 310 (1990), reaffirming that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive" (). Legal experts such as Robert Corn-Revere of FIRE warn that “the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it ‘uniquely offensive and provocative’” (, ). The executive order’s attempt to prosecute flag burning tied to incitement or property damage overlaps existing arson and riot statutes and offers no new legal theory beyond those exceptions; any broader enforcement directive directly conflicts with binding Supreme Court precedent, ensuring that federal courts will dismiss charges or issue injunctions blocking enforcement (, ).

How do constitutional law experts expect federal courts to rule on prosecutions under Trump's flag burning executive order?

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