I'm sure I remember reading last time this discussion came up that burning the flag is the only government approved way of disposing of a damaged US flag.
Disclaimer: I'm from the UK, not USA, so I could well be wrong.
EDIT: this article, which describes ceremonial flag burning ceremonies performed by veterans [1] contains a link to the flag code [2] of which section 8(k) states:
The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
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.
Palomides 2 days ago [-]
pointing this out as some kind of gotcha entirely misses the point
ralferoo 2 days ago [-]
It wasn't intended as "some kind of gotcha", it's an observation that the order trying to make burning the flag illegal is in direct contradiction with the government's own recommendation on the preferred method to dispose of a flag. Presumably the outcome is that one or the other will need to change.
Palomides 2 days ago [-]
the actual body of the order refers to acts of "desecration" without specifying their exact nature, so no, there isn't even that level of conflict
2 days ago [-]
ethagknight 2 days ago [-]
I’m interested in better understanding why some actions constitute speech, but other actions don’t. Setting aside the politics of the moment, Reading the text of the amendment, it seems like a real stretch to go from the text to “burning a flag is infringement of first amendment, but libel can be prosecuted without infringing.
From the article, here is the justification:
>> [anti flag burning policy] is a content-based, indeed viewpoint-based, enforcement policy.
twoodfin 2 days ago [-]
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.
perihelions 2 days ago [-]
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.
> "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”..."
happytoexplain 2 days ago [-]
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.
IAmBroom 2 days ago [-]
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.
2 days ago [-]
nekochanwork 2 days ago [-]
It's a distraction to drown out Trump's involvement in the Epstein human trafficking investigation.
y-curious 2 days ago [-]
The Epstein thing is the true bait, which I feel Americans are swallowing hook line and sinker.
The real meat of the issue is nationalization of companies, militarization and trying to take over the Federal Reserve.
Honestly, every president of the US has semi-directly killed thousands of people. I feel that whatever exposure he had to Epstein's island pales in comparison to, you know, operating the military industrial complex.
Many people are also surprised that politicians lie and that the ultra rich do abhorrent stuff above the law. Seems like a new trend /s
happytoexplain 2 days ago [-]
No no no, the real issue is getting everybody to disagree about what the realest issue is.
y-curious 2 days ago [-]
It's like picking a bestest friend :) maybe he figuratively has many "best friends"? Saying this as a moderate conservative before I get called a liberal
pcaharrier 2 days ago [-]
>Finally, the Order contemplates deporting and otherwise denying immigration benefits to aliens who desecrate the flag, "under circumstances that permit the exercise of such remedies pursuant to Federal law." Whether deportation of aliens based on their speech is constitutional is unsettled.
I wouldn't be the first person to note that this executive orders seems like it's a distraction tactic for something else, but this part makes me wonder if the distraction tactic is right there on the face of the thing. Perhaps there's an attempt here to give the administration another "tool in the box" for stepping up immigration enforcement actions.
IAmBroom 2 days ago [-]
> 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."
He's talking about the current state of the law on that point (i.e., deportation specifically).
pcaharrier 2 days ago [-]
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."
huvkste 2 days ago [-]
[dead]
ryandvm 2 days ago [-]
Honestly, just let him go nuts with Executive Orders. Legislatively, they are the Fisher Price steering wheel controls of government - they don't change the law in any way.
He feels like he's doing something, his base is satiated with the conflict and hurtful intent, and they can just as easily be rolled back in 3 years.
As long as he's not focused on passing actual laws (like the BBB), this is the best possible outcome of this administration. It's a bunch of performative bullshit that doesn't actually change anything.
actionfromafar 2 days ago [-]
You assume the next administration will be any different than the Russian administrations have been after each election.
panny 2 days ago [-]
[flagged]
rkomorn 2 days ago [-]
He was convicted because he stole the banner and burned it. Just like anyone who steals and destroys someone else's property might be.
Burning someone else's American flag would be a crime because it's someone else's flag.
You don't get a first amendment right to burn other people's stuff.
ethagknight 2 days ago [-]
That’s actually what the article says is being addressed, just prioritizing action against the content neutral act.
>> therefore cover desecration of a flag stolen from government property, or flag burning in a fire hazard zone on federal property.
estearum 2 days ago [-]
Which is also not how Trump and his cronies are talking about the EO.
The President "faking" chilling protected speech is exactly the same as chilling protected speech.
FergusArgyll 2 days ago [-]
That's basically what this EO is.
Prosecuting people who burn the flag for whatever other small crimes may have been related.
Both are absolutely awful. You shouldn't defend that tyrannical ruling and I won't defend this.
panny 2 days ago [-]
[flagged]
JohnFen 2 days ago [-]
> if the US simply eminent domains all American flags
That's not a thing.
rkomorn 2 days ago [-]
No, that's just asinine BS.
panny 2 days ago [-]
[flagged]
rkomorn 2 days ago [-]
I'm not sure how that's the conclusion you're coming to from reading that article.
In your example, the Israeli flag was around someone else's neck, belong to that person, and was yanked on, and the case law establishes that attacking someone who has an Israeli flag can be considered the motivation that makes it a hate crime.
And even if you read the paragraph that states
> Mainen said the ruling was significant because it established case law equating attacks against the Star of David and Israeli flag with antisemitism. Case law is formed by judges writing opinions on individual cases that guide legal interpretations in future cases. Case law differs from legal precedents in that precedents are binding, meaning they are rulings that courts must adhere to, while case law serves as a guidepost.
It still a- does not make it "illegal" and b- does not put it in a context where you decide to buy your own Israeli flag and burn it.
pcaharrier 2 days ago [-]
That case most certainly did not hold that "we cannot legally burn a foreign country's flag in the US."
That's an odd distortion of the case. Even in the article you link, it's clear that the ruling doesn't mean we cannot legally burn a foreign country's flag. The ruling was about someone wearing the Israeli flag being assaulted and the court determined that the involvement of the flag indicated that the assault was racially motivated.
panny 2 days ago [-]
[flagged]
JohnFen 2 days ago [-]
He wasn't sentenced for burning a flag, he was sentenced for destroying stolen property. The first amendment doesn't enter into it. If he brought his own flag and burned that, there wouldn't have been a legal issue with it.
panny 2 days ago [-]
Five months for stealing a flag? There's another part of the constitution which says the punishment must fit the crime. We don't care about this part though, do we?
It's a $20 flag, and we paid for his rent and meals for five months over it. He could have simply been court ordered to replace their flag, but instead we spent a mountain of tax money feeding and housing him. He won. And the 1A lost at the same time.
pcaharrier 2 days ago [-]
"Theft in the second degree. — Any person convicted of theft in the second degree shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 180 days, or both, if the property obtained or used has some value." https://code.dccouncil.gov/us/dc/council/code/sections/22-32...
jurking_hoff 2 days ago [-]
[dead]
JohnFen 2 days ago [-]
Stealing and destroying it, yes. The destroying is an important part. But, for the record, lots of people have done much longer sentences for stealing less.
perihelions 2 days ago [-]
> "Five months for stealing a flag?"
Serial offender who was convicted of theft in 2004, at the age of 20; convicted again of felony theft in 2012, at the age of 28 (for which he was sentenced to 30 months in prison); and convicted against in 2022, at the age of 40, for his violent role in attacking the US Capitol (for which he was sentenced to 22 years, and pardoned).
Disclaimer: I'm from the UK, not USA, so I could well be wrong.
EDIT: this article, which describes ceremonial flag burning ceremonies performed by veterans [1] contains a link to the flag code [2] of which section 8(k) states: The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
[1] https://www.defense.gov/News/Feature-Stories/story/article/2...
[2] https://www.govinfo.gov/content/pkg/USCODE-2011-title4/html/...
From the article, here is the justification: >> [anti flag burning policy] is a content-based, indeed viewpoint-based, enforcement policy.
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.
[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”..."
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.
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.
The real meat of the issue is nationalization of companies, militarization and trying to take over the Federal Reserve.
Honestly, every president of the US has semi-directly killed thousands of people. I feel that whatever exposure he had to Epstein's island pales in comparison to, you know, operating the military industrial complex.
Many people are also surprised that politicians lie and that the ultra rich do abhorrent stuff above the law. Seems like a new trend /s
I wouldn't be the first person to note that this executive orders seems like it's a distraction tactic for something else, but this part makes me wonder if the distraction tactic is right there on the face of the thing. Perhaps there's an attempt here to give the administration another "tool in the box" for stepping up immigration enforcement actions.
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."
Yes: https://reason.com/volokh/2025/02/03/may-aliens-be-deported-...
He's talking about the current state of the law on that point (i.e., deportation specifically).
He feels like he's doing something, his base is satiated with the conflict and hurtful intent, and they can just as easily be rolled back in 3 years.
As long as he's not focused on passing actual laws (like the BBB), this is the best possible outcome of this administration. It's a bunch of performative bullshit that doesn't actually change anything.
Burning someone else's American flag would be a crime because it's someone else's flag.
You don't get a first amendment right to burn other people's stuff.
>> therefore cover desecration of a flag stolen from government property, or flag burning in a fire hazard zone on federal property.
The President "faking" chilling protected speech is exactly the same as chilling protected speech.
Prosecuting people who burn the flag for whatever other small crimes may have been related.
Both are absolutely awful. You shouldn't defend that tyrannical ruling and I won't defend this.
That's not a thing.
In your example, the Israeli flag was around someone else's neck, belong to that person, and was yanked on, and the case law establishes that attacking someone who has an Israeli flag can be considered the motivation that makes it a hate crime.
And even if you read the paragraph that states
> Mainen said the ruling was significant because it established case law equating attacks against the Star of David and Israeli flag with antisemitism. Case law is formed by judges writing opinions on individual cases that guide legal interpretations in future cases. Case law differs from legal precedents in that precedents are binding, meaning they are rulings that courts must adhere to, while case law serves as a guidepost.
It still a- does not make it "illegal" and b- does not put it in a context where you decide to buy your own Israeli flag and burn it.
https://reason.com/volokh/2025/08/05/finding-that-defendant-...
Edit: since I'm "posting too fast"
>has some value.
https://www.amazon.com/s?k=black+lives+matter+flag
It's a $20 flag, and we paid for his rent and meals for five months over it. He could have simply been court ordered to replace their flag, but instead we spent a mountain of tax money feeding and housing him. He won. And the 1A lost at the same time.
Serial offender who was convicted of theft in 2004, at the age of 20; convicted again of felony theft in 2012, at the age of 28 (for which he was sentenced to 30 months in prison); and convicted against in 2022, at the age of 40, for his violent role in attacking the US Capitol (for which he was sentenced to 22 years, and pardoned).
https://en.wikipedia.org/wiki/Enrique_Tarrio