"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." Thus wrote Supreme Court Justice William Brennan in the landmark 1989 flag burning case, Texas v. Johnson, which held that burning the flag was protected by the First Amendment because it was expressive conduct. The story behind the landmark case is detailed below. That law still holds true today, despite the controversy surrounding it and attempts by Congress at criminalizing the behavior.
Here you’ll find a short history on the act of flag burning, including statutes that once criminalized the action and how First Amendment principles come into play.
Flag Burning Explained
Let’s set the scene of flag burning for a moment to give you a better idea. A young man belonging to an anti-establishment political organization joins a demonstration outside of the venue where the Republican National Convention is taking place. The young man is disgruntled by the policies of the current president and wants his voice to be heard. He marches through the streets with fellow protesters and eventually pours kerosene on a United States flag, setting it ablaze. During the burning of the flag, demonstrators yell such phrases as, "America, the red, white, and blue, we spit on you ..." Sounds outlandish, right?
This is actually what happened in the Johnson case cited above. Johnson was arrested and charged with the Texas state crime of flag desecration, but the U.S. Supreme Court overruled his conviction and as a result overturned the law as unconstitutional. As a result of the case, 48 out of 50 state laws that prohibited burning the flag were invalidated.
Is There a Federal Law Criminalizing Flag Burning?
- Physically defiles;
- Maintains on the floor or ground; or
- Tramples upon any flag of the United States.
Congress passed the law in response to the Johnson decision. Known as the Flag Protection Act of 1989, it was later overturned by the Supreme Court in 1990, in the case of United States v. Eichman. In striking down the law, the Court ruled again that the government's interest in preserving the flag as a symbol doesn't outweigh the individual's First Amendment right to disparage that symbol through expressive conduct.
Flag Burning: Where We Are Now
There have been numerous attempts over the years to prohibit flag burning, but the Supreme Court continues to find that the First Amendment protects the act as symbolic speech. Some of these attempts include a failed 2006 Constitutional Amendment known as the Flag Desecration Amendment.
President-Elect (at the time) Donald Trump voiced his concern over flag burning in a social media post in November 2016, calling for flag burning protesters to spend time in jail or even lose their citizenship. While the President can technically attempt an Executive Order outlawing flag burning, this effort may be quickly thwarted based upon our government having a system of checks and balances in place to review such orders which may violate the Constitution.
Flag Burning: Related Resources
Get Legal Help with Your Questions About Flag Burning
While you may not be charged with a crime under the now-defunct Flag Burning Act, you can still be charged with a number of crimes against the government while exercising your right to protest. If you've been charged with a federal crime, either while public protesting, or maybe some other way, it's in your best interests to contact a skilled criminal defense attorney to advocate on your behalf.