By Vanguard Staff
Gregory “Joey” Johnson, the protester at the center of the landmark Supreme Court case Texas v. Johnson (1989), issued a blistering statement Monday condemning President Donald Trump’s new executive order targeting flag burning. Johnson, whose case established that burning the American flag is a protected form of political speech under the First Amendment, called the order “a fascist order and an act of repression” and warned that it represents a direct assault on constitutional freedoms.
“Trump’s executive order, issued August 25, 2025, against burning the American flag, is a blatant violation of basic rights, and settled Supreme Court precedent,” Johnson said. “It is a fascist order and an act of repression. It must be opposed. The fascism behind it must be defeated.”
Johnson described the order as “an attack on established rights of political dissent,” rights that were affirmed in his own Supreme Court case. In 1989, the Court ruled that Johnson’s act of burning a flag during a protest at the 1984 Republican National Convention in Dallas was protected symbolic speech under the First Amendment. That ruling invalidated flag desecration laws across the country. The following year, when Congress attempted to re-criminalize flag burning at the federal level, the Court struck down that statute as well.
“Trump ignores the Supreme Court, and seeks to prosecute people for political ‘crimes.’ In doing so he attacks, again, the rule of law,” Johnson said. He emphasized that Trump’s attempt to punish protesters under the guise of prosecuting “related” crimes like incitement or public disorder had already been considered and rejected by the Court in Texas v. Johnson.
In his statement, Johnson said Trump’s order was an effort to compel respect for “the symbol of the U.S. government and this capitalist-imperialist system, which has violated rights and destroyed lives here and all over the world.” He characterized the order as “one more terrible assault by fascism in power” and called on Americans to resist.
Johnson also linked the order to what he described as broader authoritarian measures under Trump’s administration, citing “the ICE Gestapo terrorizing of immigrants and the military occupation and patrolling of American cities.” He endorsed calls from Refuse Fascism for massive nonviolent protest beginning November 5 in Washington, D.C., declaring, “This fascism must be driven from power by mass, non-violent protest and resistance.”
The executive order signed by Trump Monday directed the Justice Department to prosecute people who burn the flag “to the maximum extent permitted by the Constitution,” according to the New York Times. Trump, speaking in the Oval Office, declared, “If you burn a flag, you get one year in jail, no early exits, no nothing.” But as the Times reported, the order itself made no mention of such penalties and instead acknowledged that the Supreme Court has ruled flag burning to be a form of political expression protected by the First Amendment.
The order instructed Attorney General Pam Bondi to identify ways to prosecute people for flag burning without running afoul of the Constitution, including pursuing “violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights.” It also called for visa revocations and deportation of noncitizens who burn the flag — a move likely to face constitutional challenges similar to those that have stalled the administration’s attempts to deport foreign students engaged in political protest.
The order further directed federal officials to refer incidents to state and local authorities if other laws, such as bans on open fires, may have been violated. It also authorized Bondi to pursue litigation in an effort to narrow the scope of First Amendment protections established in Texas v. Johnson.
Legal experts have sharply criticized the order. Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, told the New York Times that the First Amendment still fully protects flag burning as a form of political dissent. “While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it ‘uniquely offensive and provocative,’” Corn-Revere said.
He added: “You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.”
The 1989 Texas v. Johnson case remains one of the most significant First Amendment rulings in modern history. Johnson, then a member of the Revolutionary Communist Youth Brigade, burned a flag outside the Republican National Convention to protest Reagan administration policies. He was arrested and convicted under a Texas statute that criminalized flag desecration. But in a 5-4 ruling, the Supreme Court overturned his conviction, holding that the government may not prohibit expression simply because society finds it offensive or disagreeable.
That same majority, including Justice Antonin Scalia, struck down Congress’s subsequent attempt to ban flag desecration through the Flag Protection Act of 1989. Scalia, though personally opposed to flag burning, later described the case as an example of constitutional principles trumping personal beliefs. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia once said. “But I am not king.”
Trump has long railed against flag burning, previously supporting the idea of a constitutional amendment to ban it. In 2016, shortly after his election, he suggested that people who burn the flag should be punished with jail time or loss of citizenship. His new executive order revives those arguments, but with limited legal ground.
Johnson, whose act of protest more than three decades ago remains at the heart of the national debate, said the implications of Trump’s order go beyond the flag itself. For him, it is part of a broader pattern of authoritarianism. “This is one more terrible assault by fascism in power,” Johnson said. “It must be opposed by everyone who supports basic rights.”
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Paragraph 1: “Johnson, whose case established that burning the American flag is a protected form of political speech under the First Amendment, called the order “a fascist order and an act of repression” and warned that it represents a direct assault on constitutional freedoms.”
Paragraph 2: “Johnson said. It is a fascist order and an act of repression.”
So I’m getting the feeling Johnson thinks it’s a fascist order and an act of repression.
I fully agree.
As I always bring up when this subject comes up, Johnny Cash would open one of his songs at Highwaymen concerts with, ““I thank God for all the freedom we have in this country; I cherish them and treasure them—even the right to burn the flag. We also got the right to bear arms, and if you burn my flag, I’ll shoot you”
Trump has gone too far with this, and I suspect he’s doing this once again for attention and to create a whirlwind of gorilla-dust news around himself, and that it will be shot down by the courts, but not before he’s done a dozen more performative, disruptive acts.