Although flag-burning has never been popular in America, condemning it has long been a staple for politicians. On Monday, President Donald Trump joined the chorus by issuing an executive order calling the act “uniquely offensive and provocative” and “a statement of contempt, hostility, and violence against our Nation.” The order directs federal officials to prosecute flag-burners whenever possible.But in 1989, and then again in 1990, the Supreme Court ruled that outlawing flag-burning violates the First Amendment. As a young attorney with the Center for Constitutional Rights, I represented the defendants in both cases, working under the civil-rights attorney William Kunstler. Together, the two cases illustrate why punishing flag-burning is antithetical to free speech—and why Trump’s order is likely to backfire. Not only will it encourage people to burn flags in protest, as one combat veteran did in front of the White House just hours after the order was issued. It could also hand flag-burners a legal defense in the rare situation when they might otherwise be prosecuted.The order notes, correctly, that flag-burners could be charged for violating general, “content-neutral” prohibitions on public burning, which serve environmental or public-safety interests, even though the Court has held that laws singling out the burning of flags are unconstitutional. Accordingly, the federal government has charged the combat veteran with violating a rule that bars burning of any kind in D.C.’s Lafayette Park.[Adam Serwer: What conservatives mean by ‘freedom of speech’]But Trump’s order may make even these kinds of prosecutions more difficult. The order announces that Trump seeks to use content-neutral laws, which are agnostic about the message an act might convey, to prosecute flag-burners precisely because he doesn’t like their message. In so doing, Trump has furnished future defendants, and possibly the protesting veteran, with evidence to support a “selective prosecution” defense. When the government selectively enforces an otherwise content-neutral law—say, by prosecuting those who burn flags but not those who burn trash—and does so because it disagrees with the message an individual expresses, the Constitution requires that the charges be dismissed.The difficulty in most cases is proving that the government’s purpose was illegal. But the Trump order proudly pronounces it.The story of how flag-burning came to be constitutionally protected in the first place begins with Gregory “Joey” Johnson. A member of the Revolutionary Communist Party, Johnson burned a flag at the 1984 Republican National Convention, in Dallas, chanting “America, the red, white, and blue, we spit on you.” He was convicted under a Texas statute that made it a crime to burn or otherwise desecrate the flag “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” (As with other flag-desecration laws, that language was needed because the conventional way to dispose of an old flag is to burn it. No one wants to prosecute the Boy Scouts for properly retiring the Stars and Stripes.) Sure enough, at least some onlookers testified that they were seriously offended.In Texas v. Johnson, the Supreme Court reversed Johnson’s conviction. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Justice William Brennan wrote in 1989 for the majority, which included the conservative Justices Antonin Scalia and Anthony Kennedy. Four justices dissented, including the usually staunch liberal John Paul Stevens, a World War II veteran who had been visibly upset during oral argument. The dissenters maintained that burning a flag is an “inarticulate grunt” rather than protected speech, and that preserving the symbolic value of the flag warrants jailing its desecrators.Like many controversial decisions, Texas v. Johnson was announced at the end of the Court’s term—and just before Congress’s summer recess. The legislature postponed its break, and seemingly every member took the lectern to denounce the ruling before going home for the Fourth of July. Republicans wanted to revise the First Amendment and exempt flag-burning from its protection. Democrats agreed that flag-burning should be prohibited, but favored changing federal law over amending the Constitution. Liberal constitutional scholars such as Laurence Tribe of Harvard and Geoffrey Stone of the University of Chicago argued that a law prohibiting the act would be constitutional if it were written to prohibit any desecration of the flag—not just the kind that offended onlookers—because it would then be content-neutral. Congress overwhelmingly voted to do exactly that, passing the Flag Protection Act of 1989.Johnson and several of his fellow Revolutionary Communist Party members vowed to break the law at 12:01 a.m. on the day it went into effect in order to prompt a test case. But they made one tactical error: They burned the flag in New York City, where no one cared. The same night, a group of young people in Seattle pulled down the flag flying over a post-office building and set it alight. Johnson awoke to learn that the Seattleites had been arrested and charged under the new law. Not to be left out, he and his team booked a train to Washington, D.C., where they burned flags on the steps of the Capitol. As they had hoped, they got arrested.The next day, the prosecutor announced in court that the United States would be charging three of Johnson’s associates with violating the new law, but not Johnson himself. (A disappointed Johnson objected that this was “selective non-prosecution,” but the prosecutor later told me that Johnson had failed to get his flag lit.) The case quickly came before the Supreme Court, which reaffirmed the Texas v. Johnson decision less than a year after issuing it.In the follow-up case, United States v. Eichman, the prosecution argued that the federal law merely sought to preserve the flag’s physical integrity as a marker of national unity, not to punish the flag-burners for their message. But the Court reasoned that the flag is first and foremost a symbol, not just a physical object. The only way that desecrating a symbol could undermine national unity, it reasoned, is by virtue of what the act communicates. And as the Court had stated a year earlier, the government can’t punish speech simply because it disapproves of its message.That didn’t end the controversy. All but one state—Vermont—enacted resolutions urging Congress to pass a constitutional amendment that would permit the punishment of flag-burning. The resulting resolution in the House passed by the requisite two-thirds majority. It failed in the Senate on several occasions, however, and the controversy largely died down.Then, on Monday, Trump revived it. His order posits several ways to punish flag-burners, beyond using content-neutral laws. But they are illusory. If someone were to burn a flag to incite violence or insult someone in such a way as to cause a fight to break out, the order notes, the fire-setter could be punished—not for desecration but for either incitement or “fighting words.” The test for incitement, however, is extremely demanding: Even speech expressly urging violence is protected unless the government proves that it was intended to produce imminent violence, and that it was likely to have its intended effect. That standard is almost never met, and to my knowledge, no flag-burner has ever qualified. As for “fighting words,” no federal law prohibits them.The executive order also threatens to revoke visas and seek the removal of foreigners who burn American flags. But no law identifies flag-burning as a basis for denying a visa or deporting anyone. And because the First Amendment protects all people in the United States, deporting a foreign national for flag-burning would be just as unconstitutional as jailing Johnson for doing so was.[Read: The Republican vogue for stripping citizenship]Additionally, the order invites Attorney General Pam Bondi to “pursue litigation to clarify the scope of the First Amendment exceptions in this area.” It is unclear how she would do that, as any prosecution would be dead on arrival. But in any event, the Supreme Court would be very unlikely to reconsider the “bedrock principle” Texas v. Johnson announced. The Court has repeatedly cited the case with approval. And even though today’s justices are generally more conservative than were the justices of 35 years ago, they also have a more robust view of the First Amendment.For all its fanfare, then, Trump’s order is at best an empty threat to flag-burners, and may even give them ammunition to avoid punishment. It has already spawned at least one flag-burning, and will almost certainly lead to more. But it will do nothing to expand the government’s power to punish those who burn the flag. And that is as it should be. In a free country, one is just as free to burn the flag as to wave it.