Criminalizing Flag Burning: A Secular Blasphemy Ban
When the Trump administration defends the flag as “sacred,” it borrows the same logic Europe uses to outlaw Quran burnings — all to the detriment of free expression.
President Trump’s Executive Order on Prosecuting the Burning of the American Flag has sparked intense debate. Does the EO violate the First Amendment, or — given its many qualifiers — is it simply symbolic, designed to send a political signal?
Even if the EO doesn’t stand up to legal scrutiny, its mere existence may chill expression by suggesting that certain forms of dissent are unwelcome.
But beyond its constitutional implications, the EO raises a deeper cultural and philosophical question: Is a ban on flag burning a form of secular blasphemy law?
Consider the language of the EO:
“Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.”
The parallels between this language and historical arguments in favor of religious blasphemy bans are striking. In the 18th and 19th centuries, blasphemy laws were no longer justified as a means to appease divine wrath, but rather as a way to preserve the moral and social order, which was thought to be grounded in shared religious values. The word religion, after all, comes from the Latin ligare — to bind.
In 1811, the Supreme Court of Judicature in New York affirmed the conviction of John Ruggles for blasphemy after he declared in a tavern: “Jesus Christ was a bastard, and his mother must be a whore.” Chief Justice James Kent upheld the conviction, writing:
“Though the Constitution has discarded religious establishments, it does not forbid judicial cognizance of those offences against religion and morality... punishable because they strike at the root of moral obligation, and weaken the security of the social ties. [...]The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. [...]To scandalize the author of [Christian] doctrines is not only impious, but... a gross violation of decency and good order.”
Like Trump’s EO, Kent’s opinion is rooted in a particularist conception of the state — one in which shared values (whether Christian doctrine or reverence for the flag) are seen as foundational to the social order. From this perspective, robust free speech protections grounded in viewpoint neutrality would not be considered protective of the common good. On the contrary, they are corrosive to the moral framework without which no society can thrive — a framework that presupposes deference to certain sacred and inviolable norms.
Many civil libertarians, of course, deeply value both the American flag and core religious traditions. But they argue that freedom means allowing others to express criticism of those very values — even in ways that are deeply shocking and offensive.
In an X-post defending the EO, Vice President J.D. Vance insisted it complies with Texas v. Johnson, the 1989, 5–4 Supreme Court ruling that protected flag burning under the First Amendment. But he also endorsed then-Chief Justice William Rehnquist’s dissent in that case. This is quite ironic, given that Rehnquist’s dissent bears a remarkable resemblance to the speech-restrictive reasoning found in European jurisprudence, which Vance has often and vocally criticized.
Take this excerpt from Rehnquist’s dissent in Texas v. Johnson (joined by Justices White and O’Connor):
“Far from being a case of ‘one picture being worth a thousand words,’ flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. […] The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy.”
Compare that to the European Court of Human Rights (ECtHR) 9-5 majority opinion in Otto-Preminger-Institut v. Austria (1994), which upheld the seizure of a satirical film critical of Christianity:
“Whoever exercises [freedom of expression] undertakes ‘duties and responsibilities’. Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.” [Emphasis mine]
Both Rehnquist and the European judges acknowledge that free speech is an important right that must enjoy strong protection in a democratic society. But they draw the line at expressions that offend foundational symbols: for Rehnquist, the American flag; for the ECtHR, Austria’s state religion.
Rehnquist again:
“Surely one of the high purposes of a democratic society is the ability to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning.” [Emphasis mine]
The ECtHR echoed a similar rationale:
“The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.” [Emphasis mine]
These passages reveal a common logic: that majoritarian reverence for sacred values — whether religious or civic — should take precedence over the individual’s right to transgress them. The underlying assumption is that peace, order, and cohesion depend on collective veneration of these symbols.
Arguably, Rehnquist’s view is even more sweeping than that of his European colleagues. It channels the English common law tradition of seditious and blasphemous libel, which drew no meaningful distinction between words and actions, and thus criminalized both. That tradition is deeply incompatible with a Madisonian conception of free speech.
In the former tradition, burning a flag isn’t an expression — it’s an act of symbolic violence. That is literally the underlying assumption of the EO, which states that “[flag burning] is a statement of contempt, hostility, and violence against our Nation.” [Emphasis mine]
But if we follow that logic, we invite a state that polices not just conduct, but emotional transgressions: outrage, irreverence, dissent. It is precisely because modern speech doctrines distinguish between words and actions that free countries no longer treat heresy and treason in the same manner — and why today you can get drunk in a New York bar, shout profanities about Christianity, and not end up serving three months on Riker’s Island.
More importantly, the fact that Rehnquist’s argument lost in Texas v. Johnson, while similar arguments prevailed in Otto-Preminger, is a contributing factor to why people in Europe are being arrested and convicted for burning Qurans, a state of affairs that J.D. Vance rightly lamented in his famous Munich speech. Such speech restrictions were “shocking to American ears,” Vance insisted.
What should be even more shocking is that Vance and his boss now want to import the very logic he condemned to arrest and prosecute Americans who burn their own flags.
In a pluralist society, the right to offend — even profoundly — is not a bug of free speech. It’s the feature that protects us from enforced orthodoxy, religious or secular.
Jacob Mchangama is the Executive Director of The Future of Free Speech and a research professor at Vanderbilt University. He is also the author of Free Speech: A History From Socrates to Social Media.