President Donald Trump’s executive order to criminalize burning the American flag isn’t the first Republican effort to ban the provocative protest. In fact, the party came within a single vote of getting a constitutional amendment prohibiting desecration of the flag through Congress two decades ago.

The obstacle, then as now, is a 1989 Supreme Court decision that flag burning is a form of protected speech. Trump, just after signing his Aug. 25 executive order requiring the Justice Department to investigate and prosecute people for burning the American flag, argued he could find a way around that landmark precedent by seeking prosecutions in cases in which burning the U.S. flag “is likely to incite imminent lawless action.”