{"id":352073,"date":"2023-08-30T16:31:02","date_gmt":"2023-08-30T21:31:02","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/criminal\/criminal-charges\/flag-burning.html"},"modified":"2023-08-30T16:31:02","modified_gmt":"2023-08-30T21:31:02","slug":"flag-burning","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/criminal\/criminal-charges\/flag-burning.html","title":{"rendered":"Flag Burning"},"content":{"rendered":"\n
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Flag Burning<\/h1>\n\n
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\n By John Mascolo, Esq.<\/a> | Legally reviewed by John Mascolo, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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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.<\/p>\n\n <\/div>\n\n\n\n

“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.”<\/p>\n

U.S. Supreme Court Justice William Brennan said this in the landmark 1989 flag-burning court case\u00a0Texas v. Johnson<\/i><\/a>, 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.<\/p>\n

Continue reading for a short history of flag burning, including flag desecration laws that once criminalized the act and how\u00a0First Amendment principles<\/a>\u00a0apply. You can also talk a civil rights attorney<\/a> near you for targeted legal advice.<\/p>\n

Desecration of the Flag<\/h2>\n

Before the pivotal case of\u00a0Texas v. Johnson<\/i>, the U.S. Supreme Court had limited opportunities to review challenges related to the use of the American flag.<\/p>\n

Halter v. Nebraska<\/i><\/h3>\n

As far back as 1907, the court had upheld a state law that outlawed flag desecration. In\u00a0Halter v. Nebraska<\/a><\/i>, 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.<\/p>\n

Street v. New York<\/i><\/h3>\n

In 1969, the Supreme Court came closer to addressing flag burning in the case of\u00a0Street v. New York<\/a><\/i>. 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.<\/p>\n

Sidney Street burned his own flag after he learned civil rights activist\u00a0James Meredith<\/a>\u00a0had 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.”<\/p>\n

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.<\/p>\n

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.<\/p>\n

Spence v. Washington<\/i><\/h3>\n

Another landmark U.S. Supreme Court case worthy of mention in any legal discussion of flag desecration is\u00a0Spence v. Washington<\/i><\/a>, which was decided in 1974.<\/p>\n

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\u00a0he did so in protest<\/a>\u00a0of 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 \u201cimproper use” law concerning the display of the U.S. flag.<\/p>\n

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\u00a0nexus<\/a>\u00a0that 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.<\/p>\n

Flag Burning in Texas<\/h2>\n

By 1987, the Supreme Court’s First Amendment jurisprudence came into a more direct conflict with flag burning under Texas’ flag desecration law. This incident of flag burning in 1984 led to the\u00a0Johnson<\/i>\u00a0case.<\/p>\n

Gregory Lee Johnson, a young man belonging to an anti-establishment organization, joined a political protest outside the Dallas venue where the Republican National Convention was taking place. He was disgruntled by the policies of the current president. He marched through the streets with fellow protesters and eventually poured kerosene on a United States flag, setting it ablaze. As the flag burned, demonstrators yelled phrases including: “America, the red, white, and blue, we spit on you.”<\/p>\n

These are the facts of the case\u00a0Texas v.\u00a0Johnson.<\/i>\u00a0Law 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.<\/p>\n

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.<\/p>\n

Because of this case, 48 out of 50 state laws that prohibited the burning or desecration of the American flag were invalidated.<\/p>\n

Does Federal Law Criminalize Flag Burning?<\/h2>\n

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\u00a0Title 18, Section 700<\/a>\u00a0of U.S. Code, was meant to criminalize conduct by anyone who knowingly does any of the following to any flag of the United States:<\/p>\n