On 21 November 2025, artists and cultural workers in the US are launching a nationwide ‘cultural celebration of art against fascism and censorship’. Operating under the banner ‘Fall of Freedom’ (FoF), they are joining cause with widespread resistance and protest activities that have grown across the country since President Trump’s second-term inauguration began earlier this year.
FoF calls on the arts community to: ‘unite in defiance of authoritarian forces sweeping the nation. Our Democracy is under attack. Threats to free expression are rising. Dissent is being criminalized. Institutions and media have been recast as mouthpieces of propaganda’. Its mission is to promote a ‘nationwide wave of creative resistance’, through galleries, museums, libraries, comedy clubs, theatres, and concert halls: they are being encouraged and supported to host exhibitions, performances, and public events that ‘celebrate the experiences, cultures, and identities that shape the fabric of our nation’. The rallying cry is ‘Art matters. Artists are a threat to American fascism’.
This campaign is against curbs of free expression promulgated by Trump’s numerous executive orders and policies this year, and was doubtless especially triggered by Executive Order 14341 signed on 25 August 2025: Prosecuting Burning of the American Flag. The stated purpose of this directive is ‘to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.’
The order anticipates, and purports to guard itself against, legal and constitutional challenges to its validity, by asserting: ‘Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989)’.
The First Amendment to the US Constitution dates from 1791, and is reflected in the international human rights frameworks developed in the shadow of the Second World War, including the United Nations Universal Declaration of Human Rights in 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, which was incorporated into the UK’s Human Rights Act in 1998. The First Amendment guarantees that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.
In the case of Texas v. Johnson, political activist Gregory Lee Johnson burned a US flag during a protest outside the 1984 Republican National Convention in Dallas, Texas. He was arrested and indicted for violating Texas law, which then prohibited ‘the vandalism of respected or venerated objects’, and on conviction was sentenced to one year in jail and fined $2,000. Johnson’s appeals ended in 1989 at the US Supreme Court, which overturned his conviction, ruling that burning the US flag was symbolic and political speech protected under the First Amendment to the Constitution. The decision also invalidated laws (whether federal, state, or municipal) against desecrating the US flag, which were at that time enforced in 48 of the 50 states.
Time magazine described Texas v. Johnson as one of the best Supreme Court decisions since 1960, quoting US jurists who said ‘freedom of speech applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like’.
Later in 1989, aggrieved by the Johnson decision, Congress passed the Flag Protection Act, which attempted to circumvent the court’s ruling by prohibiting ‘mistreatment of the US flag regardless of any symbolic or political message being conveyed’. On 28 October 1989, the day when this statute took effect, protests were staged nationwide and demonstrators were arrested and indicted under the new law. In Washington, D.C., Gregory Lee Johnson (the defendant in Texas v. Johnson) staged a protest with three others – visual artists Dread Scott and Shawn Eichman, and Vietnam veteran David Blalock – by burning US flags on the steps of the US Capitol building.
Scott had recently aroused controversy with his exhibit at the Art Institute of Chicago, What is the Proper Way to Display a U.S. Flag?, 1988. The work is an installation comprising: a US flag on the floor before a wall-mounted silver gelatin print and a shelf with books and pens, invites audience members to participate by standing on the flag to reach the shelf and read/use the books and pens.
Trial courts initially dismissed the indictments, applying the Texas v. Johnson ruling. US prosecuting attorneys appealed the acquittals directly to the Supreme Court to test the constitutional validity of the Flag Protection Act 1989. Cited as United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court ruled that a federal law against flag desecration was a constitutionally invalid violation of free speech under the First Amendment – and affirmed the court’s previous year’s decision in Texas v. Johnson, invalidating the Texas statute banning flag burning.
The August 2025 executive order directs the Department of Justice to prosecute US flag burning under federal law, by more stringently enforcing laws prohibiting the burning of items in public spaces, and seeks to impose penalties including up to one year’s imprisonment. The order’s citing of the Supreme Court’s ruling, in Texas v. Johnson is curious and perhaps even perfidious. It purports to enlist the case as legal authority justifying the President’s outlawing of US flag desecration. But the court’s ruling has the opposite effect, namely: that, under the First Amendment, it is unconstitutional for any level of government to prohibit the desecration of a flag. And Trump tacitly acknowledged this at his press conference announcing the order when saying ‘Through a very sad court, I guess it was a five to four decision [by the nine Justices], they called it freedom of speech’.
Moreover, the order ignores the Supreme Court’s 1990 ruling in Eichman, affirming its 1989 decisions in Johnson. Many US lawyers currently opine that the order is likely to encounter substantial constitutional challenges, including that it exceeds presidential authority, chiefly because the power to create criminal penalties rests with Congress and the States, not with the president, all of which reasoning may well ‘return the question to the Supreme Court’ – for the third time of asking.
© Henry Lydiate 2025