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The president said he had made flag burning a crime punishable by a year in prison. But such a claim contradicts both Supreme Court precedent and the text of an executive order he signed.
Oct. 9, 2025, 12:39 p.m. ET
President Trump has renewed his attacks on flag burning, bragging in extraordinary and false remarks that he “took the freedom of speech away” and made it a crime punishable by a year in prison to set fire to an American flag.
Mr. Trump made that claim on Wednesday during apparently off-the-cuff remarks at a White House-hosted “round table” on antifa, the loosely defined left-wing antifascist movement, with Attorney General Pam Bondi, Department of Homeland Security Secretary Kristi Noem and other officials, as well as various right-wing influencers who have made videos of themselves confronting left-wing protesters of Trump administration policies.
In his opening remarks at the discussion, Mr. Trump invoked an incident in which one of the influencers, Nick Sortor, was arrested last week in Portland, Ore., after a scuffle with protesters outside an Immigration and Customs Enforcement facility. A video posted on social media appears to show Mr. Sortor stopping a protester from burning a flag before the confrontation, and he brought the partly burned remnants to the round table.
Prosecutors later dropped plans to charge Mr. Sortor with disorderly conduct, saying any physical contact he initiated was self-defense. Conservatives have expressed outrage over his arrest, and the Justice Department has said it will investigate the Portland police.
At the round table, after Mr. Trump noted Mr. Sortor’s presence, he diverted to a tangent about flag burning, saying he had instituted a “one-year penalty for inciting riots.”
“We took the freedom of speech away because that’s been through the courts and the courts said, you have freedom of speech,” Mr. Trump said. “But what has happened is when they burn a flag, it agitates and irritates crowds.”
“So we’re going on that basis,” he said, adding, “When you burn an American flag, you incite tremendous violence.”
Mr. Trump’s claim that he had somehow taken away free speech and created a one-year penalty for flag burning appeared to be a reference to a remark he made on Aug. 25, when he signed an executive order that directed Ms. Bondi to find ways to prosecute flag burners “to the maximum extent permitted by the Constitution.”
When signing it, Mr. Trump had claimed to reporters that “if you burn a flag, you get one year in jail, no early exits, no nothing.” But the actual order he signed, prepared by his legal staff, said nothing about putting people in prison for a year. Instead, it acknowledged a 1989 Supreme Court ruling that burning a flag to protest government policies, even if onlookers may find that conduct offensive, is political expression protected by the First Amendment.
Mr. Trump is trying to send National Guard troops into Portland over the objections of local and state officials. Mr. Sortor, who has over a million followers on X, had gone to the protests to film them. Videos also show a crowd of protesters harassing him, including a woman with an umbrella pushing him and him then toppling off a sidewalk into a storm water collection basin.
Since the killing on Sept. 10 of Charlie Kirk, the conservative activist, Mr. Trump and his administration have threatened a wide-ranging crackdown on mainstream media institutions and political opponents, likening criticism of the president’s actions to incitement of political violence.
Among other things, Mr. Trump signed an executive order on Sept. 22 purporting to designate antifa as a domestic terrorist group. Legal specialists have portrayed that action as meaningless. One issue is that antifa is a belief system, not an organization. Another is that there is no law that empowers the government to deem domestic groups terrorists, which legal specialists say the First Amendment would very likely not permit.
On Sept. 25, Mr. Trump signed a “national security presidential memorandum” titled “Countering Domestic Terrorism and Organized Political Violence,” which directed the government to investigate people who fund organizations that he described as willing to use violence to advance sentiments like “anti-Americanism, anti-capitalism and anti-Christianity.”
Against that backdrop, Mr. Trump has been repeating the false claim that he has somehow made flag burning a crime punishable by a year in prison. Before his round table remarks, for example, he said something similar in an Oct. 3 post on his social media website.
“To ICE, Border Patrol, Law Enforcement, and all U.S. Military: As per my August 25, 2025 Executive Order, please be advised that, from this point forward, anybody burning the American Flag will be subject to one year in prison,” Mr. Trump wrote. “You will be immediately arrested. Thank you for your attention to this matter!”
Charlie Savage writes about national security and legal policy for The Times.
