"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."
U.S. Supreme Court Justice William Brennan said this in the landmark 1989 flag-burning court case Texas v. Johnson, which held that burning the American flag was protected by the First Amendment because it was expressive conduct. This Supreme Court decision permanently altered flag-burning laws.
Subject to constitutional protections for freedom of speech and freedom of expression, the destruction of the American flag mostly remains immune to criminal penalties today. This has been the case in spite of the controversy surrounding flag burning and attempts by Congress to criminalize desecration of the flag.
Continue reading for a short history of the act of flag burning, including flag desecration laws that once criminalized the action and how First Amendment principles come into play.
Desecration of the Flag
Before the pivotal case of Texas v. Johnson, the U.S. Supreme Court had limited opportunities to review challenges related to the use of the American flag. As far back as 1907, the court had upheld a state law that outlawed flag desecration. In Halter v. Nebraska, the court upheld a Nebraska statute that prohibited selling items that contained advertising and the flag. The justices at the time more or less agreed that a state could limit commercial profiteering through the use of the nation's symbol.
In 1969, the Supreme Court came closer to addressing flag burning in the case of Street v. New York. The New York state law in question made it illegal to "mutilate, deface ... or cast contempt either by words or act" on the U.S. flag. Sidney Street burned his own flag after he learned civil rights activist James Meredith had been shot while on a protest march in the South. Upon police questioning, Street acknowledged burning the flag and said: "If they let that happen to Meredith, we don't need an American flag."
Street's conviction after a bench trial had been upheld by the New York Court of Appeals, the highest state court. The U.S. Supreme Court's majority overturned the conviction, as the record could not clarify whether the charges were based (even in part) on his statement of contempt toward the flag. The high court concluded the conviction should not stand if the law banned protected speech. Street's statement clearly involved symbolic speech normally protected under the First Amendment.
Another landmark U.S. Supreme Court case worthy of mention in any legal discussion of flag desecration is Spence v. Washington, which was decided in 1974.
In that case, the Supreme Court had to decide whether to invalidate the conviction of a University of Washington student for improperly displaying the American flag. Outside his apartment, Harold Spence had hung the flag upside down and with peace symbols on it. He said he did so in protest of America's military campaign during the Vietnam War and the killings of student protesters at Kent State in the days immediately before his display. In response, he was charged with and convicted of violating Washington state's “improper use" law concerning the display of the U.S. flag.
The Supreme Court ruled that Washington's law was unconstitutional as applied to Spence's activity, which was protected expression under the First Amendment. It noted that the incident involved a privately owned flag flown on private property. There was no nexus that demonstrated the display caused a breach of the peace. Likewise, there was no evidence that anyone could reasonably have concluded the government endorsed the display.
What Happened in Texas
By 1987, the Supreme Court's First Amendment jurisprudence came into a more direct conflict with flag burning under Texas' flag desecration law. Let's set the scene of the flag burning in 1984 that led to the Johnson case to give you a better idea.
Gregory Lee Johnson, a young man belonging to an anti-establishment organization, joins a political protest outside the Dallas venue where the Republican National Convention is taking place. He 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. As the flag burns, demonstrators yell phrases including: "America, the red, white, and blue, we spit on you."
This is actually what happened in Texas v. Johnson. Law enforcement arrested Johnson and charged him with violating the state's law against flag desecration. Convicted at trial in a Texas court, Johnson faced a sentence of one year in prison and a fine of $2,000.
Upon appeal, the Texas Court of Criminal Appeals and the U.S. Supreme Court agreed that his conviction violated the First Amendment. They reversed his conviction. The Supreme Court ultimately overturned the Texas law as unconstitutional.
Because of this case, 48 out of 50 state laws that prohibited the burning or desecration of the American flag were invalidated.
Does Federal Law Criminalize Flag Burning?
It once did. There was a law on the books until the Supreme Court overturned that one as well. The federal crime, laid out in Title 18, Section 700 of U.S. Code, was meant to criminalize conduct by anyone who knowingly does any of the following to any flag of the United States:
- Physically defiles
- Maintains on the floor or ground
- Tramples upon
Congress passed the law in response to the Johnson decision. It provided an exception for the burning of a "worn or soiled" flag. The Supreme Court overturned what was known as the Flag Protection Act of 1989 just one year later, in the case of United States v. Eichman.
In striking down the Flag Protection Act, the Supreme Court ruled again that the government's interest in preserving the flag as a national unity symbol doesn't outweigh an individual's First Amendment right to disparage that symbol through expressive conduct (or free speech), whether that involves mutilating the flag or desecrating it in any other way. Thus, the court reaffirmed that bans on flag burning injure the constitutional rights to freedom of speech and freedom of expression.
Where Modern Law Stands
Despite numerous attempts over the years to prohibit flag burning, the Supreme Court continues to find that the First Amendment protects the act as symbolic or political speech or expression. One of these attempts included a failed 2006 constitutional amendment known as the Flag Desecration Amendment. The proposed amendment never passed the U.S. Senate and made no further progress in becoming law.
Then-President-elect Donald Trump voiced concern about the burning of the flag in a November 2016 social media post. He called for flag-burning protesters to spend time in jail or even lose their citizenship. While a president can technically attempt an executive order outlawing flag burning, the effort could be quickly thwarted through the government's system of checks and balances. Such an order would undoubtedly result in a court challenge.
While flag burning is no longer a criminal offense, laws are still on the books concerning the proper care of the flag. The Federal Flag Code does not prescribe penalties for desecrating the flag. It does provide guidance on proper care for the national symbol.
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Get Legal Help With Your Questions About Flag Burning
While you may not be charged with a crime under now-defunct state and federal flag burning laws, 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 crime, either while publicly protesting or during some other exercise of your civil rights, speak to a lawyer. It's in your best interest to contact a skilled criminal defense attorney to advocate on your behalf.