In the wake of Donald Trump seeming to ignore Supreme Court precedent and push to criminalize burning the American flag, leaders and commentators on the right are arguing that defacing LGBT+ Pride and Black Lives Matter flags and symbols should be legal.
“While we’re talking about flags, we should work to overturn every conviction for those arrested, fined, or otherwise harassed for the ‘hate crime’ of doing donuts over Pride flags painted on public streets,” Turning Point USA founder Charlie Kirk wrote on X on Monday.
“It should be legal to burn a rainbow or BLM flag in public,” he added in a separate post.
“I’m sorry, but as long as this is the status quo, I’m not going to work myself into a state of hysteria about Trump’s executive order on burning the American flag,” right-wing activist and writer Christopher Rufo wrote on X, pointing to an Iowa case where a man was sentenced in 2019 to 16 years in prison for ripping a rainbow flag from an Iowa church and burning it in a nearby strip club parking lot.
“It is an extremely unequal standard,” X billionaire and former Trump administration advisor Elon Musk wrote in response to Rufo.
“I have no patience for the ‘free speech’ argument for burning the American flag,” added podcaster and filmmaker Matt Walsh, pointing to a recent case where a Minnesota woman is facing a misdemeanor charge for allegedly calling a young Black child a racial slur at a playground. “We don’t have free speech in this country. If they’re going to throw people in jail for saying a bad word, then yes I want you thrown in jail for desecrating my flag. We aren’t playing by two different sets of rules anymore.”
The complaints come after the Trump administration announced on Monday it would seek to prosecute individuals for burning the American flag.
While an executive order announcing the policy suggested such prosecutions would fall in line with past Supreme Court rulings on the First Amendment, the president took things a step further, seeming to suggest all flag-burners would be punished.
“You burn a flag, you get one year in jail. You don’t get 10 years, you don’t get one month,” Trump said on Monday, though he lacks authority to unilaterally determine new categories of crimes and their punishments. “You get one year in jail, and it goes on your record, and you will see flag burning stopping immediately.”
The following day, Vice President JD Vance called the famous 1989 ruling in Texas v. Johnson protecting flag burning as political speech “wrong” in a post on X, echoing White House comments about its aims for the Justice Department to “pursue litigation to clarify the scope of First Amendment in this area.”
People have been put in prison and otherwise punished for crimes related to damaging Pride and Black Lives Matter symbols in recent years, though these punishments have often related to desecrations involving trespassing or destruction of private property, rather than individuals’ isolated public protest.
In addition to the Iowa church case, a different Iowa man was convicted on a hate crime charge for leaving hand-written notes at homes with rainbow flags, urging them to “burn that gay flag.”
Other cases cited by these commentators have led to lesser punishments.
In January, a Florida teen was given two years probation after pleading guilty to misdemeanor counts for defacing an LGBT+-themed crosswalk mural in Delray Beach, while Washington officials dropped a charge last year against a 19-year-old accused of leaving skid marks on a Pride mural in Spokane with an electric scooter.
Enrique Tarrio, the former leader of the right-wing Proud Boys street gang, was sentenced in 2021 to 90 days in jail on a destruction of property charge after pleading guilty to burning a Black Lives Matter banner he stole in late 2020 from a historic Black church in Washington, D.C. (The Trump administration later pardoned Tarrio for crimes related to January 6.)
Free speech protections have long had exceptions, allowing prosecutions for expressive conduct directly tied to actions like inciting or committing violence. Both state and federal laws criminalize hate crimes.
Following the 1989 flag-burning ruling, Congress attempted to pass a law nonetheless criminalizing burning the American flag, which the Supreme Court struck down.
Flag burning and the laws against it largely emerged amid widespread protest against the Vietnam War, and the ACLU notes that the late-1980s attempts to re-criminalize the practice spurred “perhaps the largest single wave of such incidents in American history.”
A 2006 attempt to create a new constitutional amendment on flag burning nearly passed the Senate.
Trump supporters, as well as the president himself, have been accused of desecrating the American flag in other ways.
During the January 6 insurrection, Trump supporters replaced an American flag at the U.S. Capitol with a Trump flag, and one protester used Old Glory as a weapon against police officers.
At the White House, the administration has replaced Hillary Clinton’s first lady portrait with a painting imposing Donald Trump’s face over the American flag.
On the 2020 campaign trail, meanwhile, Trump replaced the American flag with the police-themed Thin Blue Line flag at rallies.
