Washington, DC (August 25, 2025) – The National Association of Criminal Defense Lawyers (NACDL) issued a forceful condemnation of the new executive order directing the Justice Department to probe and prosecute flag burning.
"This executive order is the latest and most brazen example of an administration over criminalizing and abusing executive power to stifle dissent and punish speech protected by the Constitution," declared NACDL President Andrew Birrell. "This order, like the deployment of federal forces to cities and the declaration of a 'crime emergency' to seize control of local policing, is an effort to suppress peaceful protest. Directing the Justice Department to pursue these cases is a waste and abuse of taxpayer dollars and undermines the Constitution they are sworn to uphold. The executive order is like trying to unring a bell because the Supreme Court has spoken on flag burning as a constitutional matter, and the right to that peaceful form of political expression is enshrined. The 1989 Supreme Court ruling in Texas v. Johnson unequivocally affirmed that a Texas state law prohibiting the desecration of the American flag for political protest was unconstitutional. This executive order compels the prosecution of conduct the Supreme Court has declared constitutionally protected, creating a chilling effect on free speech."
NACDL Executive Director Lisa Wayne underscored the legal profession’s responsibility to push back against this abuse of power. "The Justices in Texas v. Johnson, including the conservative stalwart Justice Antonin Scalia, recognized that protecting unpopular speech is vital to a vibrant democracy," stated Wayne. "The order presents no example of a flag burning inciting a riot; it simply assumes a peaceful act of protest will lead to chaos. This misguided directive opens a Pandora's Box, inviting the suppression of any expression the government finds disagreeable. Criminalizing different forms of peaceful protest while deploying armed troops to patrol cities coast to coast paves a perilous path toward stifling peaceful assembly and dissent. The real question is why are we wasting taxpayers' dollars on revisiting settled law instead of looking toward true reform? This Executive Order is a reckless act of overcriminalization that strains a legal system which should be focused on preventing crime and reducing mass incarceration, not punishing protected speech.”
Contacts
Jonathan Hutson, NACDL Senior Director of Public Affairs and Communications, 202-480-5343 or jhutson@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.
