() President Donald Trump signed an executive order that directs the prosecution of those who “desecrate the American flag,” citing exceptions to the constitutionally protected act, but the legality of the issue could return to courts.

The executive order vows to “restore respect and sanctity” to the flag, calling it the “most sacred and cherished symbol of the United States of America.” In his order, Trump directs Attorney General Pam Bondi to pursue prosecutions of desecrations, saying the act amounts to “contempt, hostility, and violence” against the U.S.

The Supreme Court ruled almost four decades ago that flag burning is a form of protected speech under the First Amendment. 

While Trump tells Bondi to utilize “applicable, content-neutral laws” that are “consistent with the First Amendment,” his order directly violates standing legal rulings, Geoffrey Stone, a constitutional law professor at the University of Chicago Law School, told . 

“It is clearly inconsistent with longheld First Amendment jurisprudence,” he said.

Are flag-burning prohibitions unconstitutional? 

The Supreme Court ruled that flag burning is protected speech and that bans that stop the act are invalid because they restrict constitutional rights.

There are a few circumstances where speech is not protected, Stone said, noting that the legal test to reach that standard is exceptionally demanding.

Under one exception, speech can be prohibited if it expressly incites unlawful conduct with the intent of causing that conduct, which is also likely to occur imminently and is grave, he said.

However, the Supreme Court has not upheld a single conviction under that standard in half a century, Stone noted.

“Quite frankly, flag burning is not going to satisfy that test,” he said. “Unless the government could prove that someone burned a flag with the specific intent of causing an immediate violent response that was grave and that could not be prevented by the government otherwise,” it’s not going to prevail, he said.

Another exception is the “fighting words” doctrine, which states that certain words meant to incite violence may not be protected free speech.

But the Supreme Court has narrowed this doctrine and requires the words to be a direct, personal insult aimed at an individual in a way that is likely to provoke a violent reaction. 

“The Supreme Court has never applied that doctrine ever since it was first decided, so, in theory, there’s something called the ‘fighting words’ doctrine, but it really hasn’t existed,” Stone said. 

“In any event, that’s only face-to-face speaking where one person directs speech at another person individually, it’s not about speech that upsets an audience,” he said, adding that the flag burning would not pass that test either. 

Regardless, Trump invoked both exceptions in his executive order, hinting that his order would fall under one.

“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,” he writes. 

While long used as a form of protest, burning has also been prescribed as the preferable way to properly dispose of a flag that is “no longer a fitting emblem for display,” the U.S. Flag Code states.  

What has the Supreme Court said about flag burning?

The issue of flag desecration made its way to the Supreme Court in 1989 and again in 1990. Both cases established that politically motivated flag burning is a form of protected free speech under the First Amendment. 

In Texas v. Johnson, a man was arrested for burning an American flag outside of the 1984 Republican National Convention to protest the policies of former President Ronald Reagan. 

He was charged with violating a Texas statute that prevented the desecration of the American flag if such action was likely to incite anger in others. 

The case went to the Supreme Court, which said in a 5-4 ruling that the act constitutes protected “symbolic speech.” 

President George H. W. Bush expressed outrage over the ruling at the time, saying flag burning “goes too far” and that a “constitutional amendment is the only way to ensure that our flag is protected from desecration.”

In response to the ruling, Congress passed the Flag Protection Act of 1989, which prohibited flag desecration. 

That law was challenged and rose to the Supreme Court, which reaffirmed its stance from the Texas case. 

Both cases remain the prevailing law.

What happens next with Trump’s flag-burning executive order?  

If Bondi or another federal body were to enforce or carry out the executive order, they would do so against the law, which would quickly trigger legal challenges.

“Under the existing law, the regulation would be unconstitutional,” he said.

But Stone said the intention of the order appears to be to get this issue rolling back into courts.

The “goal of the administration is the hope that there are five justices who would agree to embrace an exception to the existing jurisprudence that would allow flag burning to be punished in situations where, for example, it can be shown to have specifically intended to have caused an immediate violent response,” he said. 

They are not looking to get the ruling overturned, he said, but rather get an exception. 

The argument the administration would make to the current court is that those “past rulings didn’t deal with a fact situation in which an individual burned a flag where there was a likely imminent violent response to the flag burning” so that should be an exception, he said. 

But Stone believes the Supreme Court is likely not going to stretch that far on the issue. 

“It would be very hard for them to do that because flag burning is communicating a message, and even the current court is very reluctant to allow speech to be prohibited because it communicates a message that the government doesn’t like.”