A resurfaced video of former Supreme Court Justice Antonin Scalia defending the right to burn the American flag has gone viral after President Donald Trump signed an executive order banning the practice on Monday.
In a 2012 CNN interview with British journalist Piers Morgan, Scalia defended desecrating the American flag as constitutional free speech. The video has been viewed over 400,000 times.
Scalia, who was appointed by President Ronald Reagan, was widely regarded as one of the most conservative justices on the U.S. Supreme Court up until his death in 2016.
Why It Matters
The issue of burning the American flag has been a political talking point for decades. Votes to add an amendments banning the practice have come up in Congress a number of times. In 2005, the amendment gained the need votes in the House, but in 2006 it fell one short in the Senate.
Polling on the issue has shown most Americans are against flag burning. In a 2021 Knight Foundation poll just 31 percent said they think flag burning should be allowed. In a June YouGov/CBS poll, 66 percent of those surveyed said they think flag burning should be against the law.
Bozeman Daily Chronicle, Sean Sperry/AP
What To Know
Trump on Monday signed an executive order banning the burning of the American flag, introducing penalties of up to one year in jail and empowering the Justice Department to investigate incidents, including potential visa revocations for foreign nationals involved.
The order acknowledges a 1989 Supreme Court ruling, which Scalia supported, that the First Amendment protects flag burning as legitimate political expression, but says there is still room to prosecute flag burning if it “is likely to incite imminent lawless action” or amounts to “fighting words.”
Civil liberties advocates and constitutional scholars have questioned both the legality and the merit of Trump’s action.
“If I were king, I would not allow people to go about burning the American flag,” Scalia said. “However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government.”
He acknowledged that the act, while offensive, qualifies as symbolic expression: “Burning the flag is a symbol that expresses an idea. I hate the government.”
Former Supreme Court Justice Antonin Scalia explains why burning the American flag is protected free speech under the First Amendment:
“If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment…” pic.twitter.com/ce3MQB55CT
— Republicans against Trump (@RpsAgainstTrump) August 26, 2025
When Morgan asked whether interpretation ultimately rested on his personal judgment, Scalia emphasized that legal safeguards extend beyond any one justice: “Don’t forget this person has to be convicted by a jury of 12 people…ultimately, the right of jury trial is the protection.”
The 1989 case Texas v. Johnson saw the Supreme Court strike down state laws banning flag burning in a 5–4 decision, recognizing it as protected political expression. Scalia, despite his conservative reputation, joined the majority.
Justice William Brennan wrote for the court: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Trump’s order says the Department of Justice should bring federal cases “against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.”
The laws referenced in Trump’s order include “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace.”
Hours after the order was signed, a man was arrested outside the White House after setting fire to an American flag.
What People Are Saying
The president’s executive action ignited harsh blowback from conservative media figures, as well as from the son of Scalia.
President Donald Trump said while signing the order: “They burn the American flag. They call it freedom of speech. When you burn a flag, the area goes crazy. If you have hundreds of people, they go crazy. You can do other things…but when you burn the American flag, it incites riots at levels we’ve never seen before.”
Christopher Scalia, a senior fellow at the American Enterprise Institute and the son of the late Supreme Court Justice Antonin Scalia, quoted his father, writing on X: ” ‘You should be in no doubt that, patriotic conservative that I am, I detest the burning of the nation’s flag—and if I were king I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, the Congress, the Supreme Court, even the nation and the nation’s flag.’ – Justice Antonin Scalia.”
Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and
Expression, told the Associated Press that while the government can prosecute people for setting fires unlawfully, it “can’t prosecute protected expressive activity, even if many Americans, including the president, find it ‘uniquely offensive and provocative.’ “
Jesse Kelly, the host of the conservative talk radio show “The Jesse Kelly Show,” wrote on X: “I would never in a million years harm the American flag. But a president telling me I can’t has me as close as I’ll ever be to lighting one on fire. I am a free American citizen. And if I ever feel like torching one, I will. This is garbage.”
White House spokeswoman Taylor Rogers said: “President Trump will always protect the First Amendment, while simultaneously implementing common sense, tough-on-crime policies to prevent violence and chaos.”
What Happens Next
A legal battle is likely to unfold in the courts if legal proceedings are pursued against any flag burners.