Executive Order 14341: Prosecuting Burning of the American Flag

What does Executive Order 14341 do?

The order does not create a federal crime of burning a privately owned flag. Texas v. Johnson and United States v. Eichman remain controlling Supreme Court precedent protecting flag burning as expressive conduct in the circumstances those cases addressed. Existing laws may still apply to theft, trespass, property destruction, fire safety, violence or other independently unlawful conduct.

Reading the operative provisions of Executive Order 14341

EO 14341 directs the Attorney General to prioritize enforcement of existing, content-neutral criminal laws when flag-burning conduct violates them, and to pursue litigation consistent with the First Amendment. The Federal Register text of EO 14341 does not create a new federal crime that makes flag burning itself illegal. Its instructions concern prosecutorial priorities under laws that already apply.

Flag burning can be expressive conduct. The Supreme Court has held that government cannot punish expression simply because it is offensive or disrespectful to the flag. Conduct that independently violates a valid law—such as arson that endangers others or destruction of property the person does not own—can be prosecuted under that law, provided the government does not use it as a pretext to suppress a viewpoint.

The order’s direction to litigate constitutional questions does not change the First Amendment standard or bind courts. Prosecutors must assess the facts, the statute, evidence and constitutional limits in each case. The order also preserves the distinction between an official policy statement and a criminal charge: a charge must allege a statutory offense and be proved in court. Readers should not infer that a peaceful flag-burning protest is automatically unlawful.