New "Prosecuting Burning of the American Flag" EO Would Violate First Amendment

Burning a flag for disposal rather than desecration does not violate the order.

  ...it covers desecration that violates "applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment."

I think that this order is not content neutral, and should be considered dead on arrival. But it isn't a general order against any US flag burning.

pointing this out as some kind of gotcha entirely misses the point

It’s possible to commit crimes or civil infractions (fraud, for example) through speech without the speech itself being the criminal act.

In the case of flag burning, unless the context is a general ban on burning anything, the content of the speech is what’s being banned, and that content is itself not criminal in any other way.

Most US states don't have criminal defamation laws ("...more than a dozen states still maintain criminal libel laws"[1]). They're infrequently used, except[0,1] an abusive tactic by police; most experts seem to think they're unconstitutional, but they haven't (yet) been invalidated on First Amendment grounds.

[0] https://www.aclu.org/press-releases/u-s-supreme-court-declin... ("U.S. Supreme Court Declines to Hear First Amendment Challenge to Criminal Defamation Law" (2023))

[1] https://www.thefire.org/cases/frese-v-formella ("Frese v. Formella")

> "Throwing someone in jail for badmouthing a public official is profoundly undemocratic and un-American."

> "But that didn’t stop police from arresting Robert Frese after he insulted them on Facebook. According to the Exeter Police Department in New Hampshire, Frese violated the state’s criminal libel law when he referred to an officer as a “coward” who was “covering up for a dirty cop.” New Hampshire’s law makes it a misdemeanor to say or write anything that you know is false that will expose someone to “public hatred, contempt or ridicule”..."

Speech implies intended communication of a message.

Burning the flag in a box of discarded junk from Grandma's house is intentional, but without message. I could conceive of that being made illegal... but so incredibly rare as to be pointless.

Burning the flag as part of the solemn, prescribed way to burn a flag has intent and message, and is speech. So is burning the flag to protest the US involvement in whatever atrocity the government is currently involved in.

Not to be too blunt, but the difference between the two seems obvious (of course that doesn't mean you have to agree with the law's treatment of that difference): Libel has the potential (and I think, by definition, the intent) to have concrete harmful consequences, while US-flag-burning is purely expressive - the harm is only emotional (if we assume the burning is done safely, since that's irrelevant to the topic).

Maybe you could argue that it "encourages" further action and should be covered under something similar to hate speech laws, but it doesn't seem specific/actionable enough to make sense - and anyway, that's tangential to the question of the difference between libel and US-flag-burning.

It's a distraction to drown out Trump's involvement in the Epstein human trafficking investigation.

I'm in good company in making this observation, it seems: https://reason.com/volokh/2025/08/26/trumps-flag-burning-exe.... "The executive order does not create any new bases for deporting a foreign national, but the order does potentially move flag burners to the front of the line in deportation cases."

> Whether deportation of aliens based on their speech is constitutional is unsettled.

Is it? That would suprise me. The First Amendment does not mention citizenship:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If free speech of aliens were not protected, neither would their practice of religion. "Americans can be Catholics, but we won't let any non-American Catholics in. We have enough of them."

You assume the next administration will be any different than the Russian administrations have been after each election.