Sen. Josh Hawley (R-MO) is crafting legislation to impose additional penalties against those who burn the American flag while committing another crime, such as inciting violence or endangering others.
The effort by the former Missouri attorney general has gained traction after recent flag-burning during violent protests in Los Angeles against President Donald Trump’s mass deportation operation.
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“If you burn the flag in furtherance of a crime, then you get an enhancement to your sentence,” Hawley told the Washington Examiner. “If you incite violence by burning the flag, if you put other people’s lives in danger by burning the flag, then you get penalized for it.”
Burning the American flag, as a general act, is protected speech under the Constitution’s First Amendment. The Supreme Court in 1989 upheld the rights of a protester to burn the flag as symbolic speech in the landmark case Texas v. Johnson.
The forthcoming proposal would “steer around” the ruling that Hawley says the Supreme Court justices, including the late conservative Justice Antonin Scalia, got wrong.
“I happen to think they got that case wrong. But taking it as it is, that case says that burning your own American flag in a public space that doesn’t endanger anybody is a form of free speech,” Hawley said. “But that’s not what we’re talking about here. This bill won’t penalize that.”
Trump leaned into the idea Tuesday during a speech at North Carolina’s Fort Bragg to honor the 250th anniversary of the Army. He turned his ire toward those in California who’ve engaged in violent acts, which have prompted him to take the extraordinary step of ordering thousands of California National Guard troops to Los Angeles against the wishes of Gov. Gavin Newsom (D-CA).
“These are animals. But they proudly carry the flags of other countries, but they don’t carry the American flag. They only burn it,” Trump said. “Did you see a lot of flags being burned? They weren’t being burned by people from our country or from people that love our country. People that burn the American flag should go to jail for one year. That’s what they should be doing — one year — and we’ll see if we can get that done.”
In reality, the Senate’s 60-vote filibuster makes it nearly impossible to put anti-flag-burning laws on the books because of concerns over free speech that cross party lines.
“That bill — conceptually, I got no problem with it,” Sen. Thom Tillis (R-NC), who accompanied Trump on Air Force One to Fort Bragg, told the Washington Examiner. “But you know that bill is never going to get out of the Senate with the 60-vote threshold.”
Similar endeavors have been undertaken since the 1990s by mostly Republican lawmakers to spurn flag-burners but ultimately failed. In most cases, they were attempts to amend the Constitution.
More recent examples include Sen. Steve Daines (R-MT) in 2021 and Rep. Steve Womack (R-AR) in 2023 proposing constitutional amendments barring American flag desecration. Former Sen. Robert Bennett, a Utah Republican, proposed legislation in 2005 similar to Hawley’s vision.
The Tar Heel State’s other senator, Sen. Ted Budd (R-NC), told the Washington Examiner he was “opposed to burning the American flag” but declined to discuss Hawley’s bill further.
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Hawley suggested his measure might include a stiffer penalty than that proposed by Trump.
“The president threw out a one-year enhancement. I was like, ‘Why not just double it?’” he said. “But we’ll work out the details.”