If you’ve ever wondered who really makes laws in this country or what happens when protest and free speech collide, stick around.

Let's look at President Trump’s executive order on flag burning.

There’s a lot of chatter out there about what an executive order actually is, what power the president really has, and how the Constitution fits into all this—and honestly, a lot of people are getting it wrong.

So, I’m here to clear things up. I’ll break down exactly what Trump is trying to do with this order, why it’s not quite what some people think, and what the law actually says about flag burning (hint: we’re talking about First Amendment rights and the Supreme Court’s big decision in Texas v. Johnson).

Additionally, I’ll share a great quote from Justice Scalia and discuss why our right to criticize the government—even in contentious ways—matters so much.

Here’s the real story, beyond the barstool chatter and media soundbites:

Executive Orders Aren’t Laws

The President can issue executive orders to guide administrative agencies, but they can’t make new laws—that power comes from Congress.

The Limits of Presidential Power

Executive actions can’t override the Constitution. Flag burning, for example, is considered symbolic speech protected by the First Amendment (see: Texas v. Johnson, 1989).

Fighting Words & Incitement Matter

Trump’s directive targeted flag burning only if it “incites violence”—a narrow exception that still faces tough constitutional scrutiny and likely doesn’t change much in practice.

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2025 Stephen E. Palmer - Attorney At Law

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Steve Palmer here, LawyerTalkPodcast.com that's the website. You can check it out. I do all sorts of stuff. And among the series I do is a breakdown. I call it the breakdown series, where I take these sort of hot topics and break them down and talk about what they really mean and what's really going on. Because so often the news media, reports stuff, people on the bar stools talk about it, and they don't quite have it right. And I think this is a topic that qualifies. So it turns out Trump, like many of his or like the last three or four of his presidential predecessors, they like this idea of an executive order and what he did.

The most recent, one of the most recent executive orders I saw is Trump purports to criminalize flag burning. And I oversimplified it because that's not exactly what he's doing. So this brings up all sorts of legal questions that I think are worthy of a little bit of discussion. First, what's an executive order? Well, that's the president just saying. I hear by order it. And anybody who follows our Constitution and has read something like things like the Federalist Papers and maybe just the Constitution itself, knows that the executive branch doesn't necessarily have the kind of power that these presidents are flexing and purport to have. Yet it's happening. And the president does, however, sit over top of various administrative agencies.

And I guess you can turn back the clock all the way to the turn of the century. The old maybe Woodrow Wilson decides that we don't need this limited form or limited power of government anymore. We can, the president can do it. He's mature and smart enough to just sort of take it over. And so that is sort of the birth of the administrative agencies. And one of the administrative agencies that the president would sit over would be the Department of Justice. So in theory, the President Trump would have authority to direct the Department of Justice to enforce certain things. Now, this is all, of course, constrained by the bounds of the Constitution.

So the president can't order something that violates the Constitution. The president can't say, I'm going to arrest everybody who exercises their right of free speech and criticizes my presidential regime. That would violate, clearly violate, the First Amendment. Eventually, that would matriculate its way up to the the Supreme Court. And even those haters of the current court would probably be pleased with the outcome, because I have no doubt the court would say that is an unconstitutional executive order. There's been lots of examples of this over the last year or so, or maybe eight months or so. At any rate, back to what President Trump decided to do here. He said that I am directing that we are going to start charging people with for burning the flag.

But he added some language into it. He didn't just say, I guess before I even get there, he doesn't say, I am here by making it a law that you can't burn the flag. He doesn't say that because he doesn't have the authority to say that. He doesn't have the authority that would far exceed any executive order. We would all hope, rather that we had this other branch of government, a big one that we hardly hear about, except when they grant stand on TV called the legislative branch of government, which is comprised of the House of Representatives and the Senate. Their job is to make laws and pass laws. And so if they want to criminalize flag burning, well, they have all the prerogative. They want to try to do it, of course, constrained again, by the bounds of the Constitution.

So what Trump was really saying is, I am directing my federal police, call it the FBI or Homeland Security, whoever, Department of justice, to start prosecuting folks for burning flags. But then he added some magic words and, and the magic words were, if it is inciting others to violence or some other words to that effect. Now, why does that matter? Well, because it turns out this is not a new issue. There was a case back, I think, in 89, that we pulled up called Texas vs. Johnson, 1989, the Supreme Court case ruled that flag burning is a form of, quote, symbolic speech protected by the First Amendment. Now, this was like, this came on the heels of a string of a bunch of cases where, where states were essentially saying, you can't burn flags, it's a crime. And eventually the US Supreme Court said no. When I learned this in law school, we called it like speech plus conduct or symbolic speech is what they're talking about here.

So maybe giving somebody the middle finger. Are you saying something out loud? No, but it's speech and it's conduct. It's meant to be an expression. And I think what the Supreme Court in Texas v. Johnson was saying is this was a form of expression, of symbolic speech, and therefore it is protected under the First Amendment. Now, interesting. I love this quote because Antonin Scalia, a famous conservative justice and a really, really smart guy, and look, agree with him or don't agree with him, go read some of his prose and his decisions. The guy was a great writer.

But what he said is his famous quote. And by the way, Scalia was Sort of the swing vote. This was a 5, 4. And Scalia declared it unconstitutional. And he says, if it were up to me, I would put in jail every sandal wearing, scruffy, bearded weirdo who burns the American flag. But I am not king. Now, there's a lot of even conservative commentators who disagree. They would say, put the flag on its own pedestal.

This is something unique. We should be able to create, carve out this protection for flag burning. I don't know if you agree or disagree with that. Scalia did not agree with that viewpoint. He said, look, political speech. I think the point he was making is this is a form of political speech and we are allowed in our country to criticize our own government. Makes our system of justice, dare I say, better than all the others. We have freedom to criticize the government.

We left Maybe back in 1776, we left a place where you couldn't do that, where you would be charged with sedition and other horrible crimes for trying to do that and thrown in jail by the king. And we said, nuh, we have a right, a First Amendment right to criticize the government if we so desire. Now, that hasn't. That's evolved. So I'm oversimplifying it, as I often do, but the point here is President Trump's Executive Order 1 is not a law. He is not allowed to write laws for, from the Oval Office. It's not a law. It's a direction for administrative departments under his control.

Secondly, he added to it a modifier. I want you to prosecute cases where people are burning flag and it's inciting violence. So these are what you would call maybe fighting words. There's been some litigation, not recently on fighting words, but you can't incite a riot. Now, those that don't like Trump would say, well, that's thick, because didn't he do that on January 6th? You decide, I'm not going to comment on that. But you can't incite people to violence or to riot. And Trump is saying, if you're doing that and it involves burning the flag, we want to prosecute those people. So what does all that mean? Really? Nothing.

His order is pyrrhic. Look that word up if you must, but it means it doesn't. It's not really doing much. It just looks good, or to some people, maybe intentionally, perhaps upsets others. But if you like the law on this, if you want to go check it out, Texas versus Johnson, there's lots of summaries online. They'll do a better job than I. If you got a topic you want me to cover right here on LawyerTalkPodcast.com I will do it. Send me a question, shoot me a topic in the comments or on the website, off the record, on the air till now.