Under Texas v. Johnson (1989) and United States v. Eichman (1990), can the executive branch prosecute flag burning when no incitement to imminent lawless action or other crimes are involved?

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The Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), held 5–4 that burning the American flag is "symbolic speech" protected by the First Amendment, and United States v. Eichman, 496 U.S. 310 (1990), reaffirmed that Congress cannot prohibit flag desecration absent narrow exceptions (, ). President Trump’s August 25, 2025 executive order directs the Attorney General to prosecute flag burning only when it violates content-neutral laws—such as arson statutes or hate-crime prohibitions—or when it "is likely to incite imminent lawless action" or amounts to "fighting words," doctrines derived from Brandenburg v. Ohio (1969) and Chaplinsky v. New Hampshire (1942) (, ). Applied strictly to those exceptions, prosecutions would not contravene the First Amendment; but any attempt to criminalize pure flag burning as expressive conduct would override binding Supreme Court precedent and therefore be unconstitutional.

Under Texas v. Johnson (1989) and United States v. Eichman (1990), can the executive branch prosecute flag burning when no incitement to imminent lawless action or other crimes are involved?

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