The American flag, with its stars and stripes, is one of the most recognizable and potent symbols of the United States. It represents the nation's values, history, and aspirations. However, the very freedoms it symbolizes have led to a complex and often contentious legal landscape surrounding its treatment. The issue of flag desecration, particularly flag burning as a form of political protest, has been a flashpoint in American law and politics for decades, pitting free speech advocates against those who view the flag as a sacred national symbol deserving special protection.
This article delves into the intricate history and current legal status of flag desecration in the United States, exploring how the issue intersects with fundamental constitutional rights and deeply held beliefs about patriotism and free expression. We will examine the evolution of flag protection laws, landmark Supreme Court decisions, ongoing legal debates, and how the U.S. approach compares internationally.
The first laws protecting the American flag from desecration were enacted in the late 19th and early 20th centuries. These initial laws were primarily aimed at preventing the use of the flag for commercial advertising. By the mid-20th century, most states had laws prohibiting flag desecration in various forms.
During World War II and the subsequent Cold War, patriotic fervor led to increased sensitivity about the treatment of the flag. This period saw a proliferation of flag protection laws and stricter enforcement of existing statutes. The flag became an even more potent symbol of national unity and American values in opposition to fascism and communism.
In 1968, Congress passed the first Federal Flag Protection Act, which criminalized burning or otherwise knowingly casting contempt on the flag.1 The statute imposed fines and up to one year in prison for violations. More than two dozen protesters were prosecuted under the federal law over the next two decades.
The seminal Supreme Court case on flag desecration began with protests at the 1984 Republican National Convention in Dallas. Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, burned an American flag as part of a demonstration against Reagan administration policies. As the flag burned, protesters chanted, "America, the red, white, and blue, we spit on you."2
Johnson was arrested, charged with violating the Texas flag desecration law, and eventually sentenced to one year in prison and a $2,000 fine. The Texas Court of Criminal Appeals overturned Johnson's conviction, ruling that the First Amendment protected his flag burning as symbolic speech. The state appealed to the U.S. Supreme Court.
In a landmark 5-4 ruling handed down on June 21, 1989, the Supreme Court affirmed the Texas court's decision and struck down the state's flag protection law as unconstitutional. Writing for the majority, Justice William Brennan held that Johnson's flag burning was expressive conduct "sufficiently imbued with elements of communication" to qualify for First Amendment protection.3
Brennan rejected the state's arguments that flag burning should be banned to preserve the flag as a symbol of national unity or to prevent breaches of the peace. The Court found that the government's interest in preserving the flag's symbolic value was related to the suppression of expression and thus incompatible with the First Amendment.
Most fundamentally, the Court majority held that the "bedrock principle underlying the First Amendment" is that "the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."4
In a stinging dissent, Chief Justice William Rehnquist argued that the American flag holds a "unique position as the symbol of our Nation" justifying a prohibition on its desecration. Rehnquist invoked the flag's historic role in unifying the colonies during the American Revolution and commemorating battlefield sacrifices from the Civil War to Iwo Jima.5
Justice John Paul Stevens' separate dissent contended that the government could lawfully "foster respect for the symbol that uniquely represents" cherished national ideals.6
The ruling invalidated flag desecration laws in 48 states and the federal government. It was widely condemned by political leaders and the public, with President George H.W. Bush calling it a "mistake" and proposing a constitutional amendment to reverse it.7
Galvanized by the backlash against Texas v. Johnson, Congress swiftly passed a new Federal Flag Protection Act in 1989.8 Attempting to avoid the Court's First Amendment concerns, the Act criminalized burning or otherwise mutilating the flag without regard to any communicative message.
The constitutionality of the new flag desecration law would not go long untested. On the day the Act took effect in October 1989, protesters burned flags on the steps of the U.S. Capitol, including Gregory Lee Johnson, the plaintiff from Texas v. Johnson.9
On June 11, 1990, in another 5-4 ruling, the Supreme Court struck down the Flag Protection Act of 1989 as unconstitutional. The majority opinion, again authored by Justice Brennan, held that despite Congress' effort to draft a content-neutral law, the federal statute still violated the First Amendment because it suppressed expression related to the flag based on its likely communicative impact.10
Following the Eichman ruling, all state and federal laws banning flag desecration were rendered unenforceable.
Despite being ruled unconstitutional, the text of 18 U.S.C. § 700 remains on the books. It states:
"(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both. (2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled."11
However, this law is unenforceable due to the Supreme Court rulings in Johnson and Eichman.
The United States Flag Code provides guidelines for the handling and display of the American flag. It includes provisions such as:
- The flag should never be used for advertising purposes.
- It should not be used as wearing apparel, bedding, or drapery.
- It should never touch the ground.
- It should be illuminated if displayed at night.
- When a flag is so tattered that it can no longer serve as a symbol of the United States, it should be destroyed in a dignified manner, preferably by burning.12
However, the Flag Code is officially advisory in nature. There are no penalties for failing to comply with it, and it is not enforced – doing so would likely conflict with First Amendment protections. The Flag Code serves more as a guide for respectful treatment of the flag rather than a legally binding set of rules.
Following the Supreme Court decisions, state laws prohibiting flag desecration are also unenforceable. However, many states have not formally repealed these laws, leaving them on the books despite their unconstitutionality.
In the wake of Texas v. Johnson and United States v. Eichman, Congress repeatedly considered constitutional amendments to overturn the Supreme Court decisions and restore the government's power to outlaw flag desecration. From 1995 to 2006, the proposed Flag Desecration Amendment was passed by the House of Representatives six times with the requisite two-thirds majority.13
The proposed amendment typically read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
Proponents of a flag desecration amendment argue that the flag deserves special protection as a unique national symbol. They contend that flag burning is not merely speech but a form of conduct that can be regulated without violating core First Amendment principles.
Opponents counter that amending the Constitution to prohibit flag desecration would undermine the very freedoms the flag represents. They argue that protecting unpopular speech is crucial to maintaining a robust democracy and that creating an exception for the flag could lead to further erosion of free speech rights.
While serious efforts to pass a constitutional amendment have waned in recent years, the issue periodically resurfaces in political discourse. For example, in 2019, President Donald Trump suggested that flag burning should be subject to jail time or loss of citizenship, reigniting debate on the topic.14
While flag desecration itself cannot be criminalized, certain flag-related conduct may still be punishable under other laws:
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Theft and Property Damage: Stealing someone else's flag and burning or damaging it could be prosecuted as theft, vandalism, or property damage.15
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Arson and Endangerment: Setting a flag on fire in a manner that threatens nearby people or property could violate arson, reckless endangerment, or public safety laws.16
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Fire Code Violations: Burning flags in violation of local fire codes or ordinances against outdoor fires could result in citations.17
For example, in 2017, a Cleveland man was arrested for burning a flag at the Republican National Convention. While he could not be prosecuted for flag desecration, he faced charges for assault and aggravated arson because the fire allegedly burned two people.18
The robust constitutional protection for flag desecration under the First Amendment sets the United States apart from many other democracies. Numerous countries, including some Western allies of the U.S., have laws against desecrating or disrespecting the national flag.
In France, publicly desecrating the tricolor flag can result in a fine of 7,500 euros and up to six months in jail.19 Germany has banned flag desecration since the 1980s.20 Even Canada, which in many respects has an equally strong free speech tradition, has a criminal prohibition on publicly defiling or desecrating the Canadian flag.21
The United Kingdom is a notable exception among European countries, with no specific laws prohibiting desecration of the Union Jack.22
While international norms and practices on the flag desecration issue are mixed, the U.S. is clearly an outlier in granting such expansive constitutional protection to the act under free speech principles. This reflects the centrality of the First Amendment in American law and culture, often extending to unpopular and offensive forms of expression prohibited in other democracies.
The long history of the American flag desecration debate illustrates the tension between two deeply-held values: respect for the national symbol and allegiance to the constitutional principles that symbol represents. For much of the 20th century, all U.S. states and the federal government imposed criminal penalties for publicly desecrating the flag. The Supreme Court's decisions in Texas v. Johnson and United States v. Eichman transformed that legal landscape, establishing flag burning as protected symbolic speech under the First Amendment.
Today, while flag desecration remains deeply offensive to many Americans, it is legal as a form of political expression. Efforts to amend the Constitution to allow for flag desecration laws have thus far fallen short, but the issue continues to evoke strong emotions and occasional political controversy.
The flag desecration debate encapsulates fundamental questions about the nature of free speech and the balance between individual liberty and collective national identity. As such, it remains a significant and instructive chapter in the ongoing American experiment with democracy and constitutional governance.