On a sweltering Dallas evening in August 1984, as the Republican National Convention raged inside the city's Reunion Arena, a 26-year-old member of the Revolutionary Communist Youth Brigade named Gregory Lee Johnson set fire to the American flag. As the flag burned, protesters chanted "America, the red, white, and blue, we spit on you."1 Johnson's inflammatory act, and his subsequent arrest and conviction for flag desecration under Texas law, would spark a legal battle that ascended to the Supreme Court and forever transformed the debate over the American flag and the meaning of free speech.
The iconic photograph of Johnson's flag burning protest distills the raw emotion of an issue that has smoldered for decades in American law and politics. On one side are those who see the physical desecration of the flag as a sacrilegious affront to a revered national symbol embodying the sacrifices of American soldiers and the shared values of the Republic.2 On the other side are those who argue that the First Amendment's guarantee of free speech must protect even the most offensive forms of political expression, including the right to burn the very flag that represents those freedoms.3
This article explores the history and current status of the flag desecration debate in the United States, tracing the issue from the early 20th century through landmark Supreme Court rulings and ongoing attempts to amend the Constitution. It examines how flag desecration laws bring core American values into conflict and highlights the difficulty of balancing competing principles like patriotism and protest in the world's most robust free speech tradition. While the Supreme Court has held for over three decades that laws banning flag desecration violate the First Amendment, political and legal battles over the issue persist - a testament to the unique symbolic power of the Stars and Stripes in the American psyche.
The first state laws specifically banning flag desecration emerged in the late 19th and early 20th centuries. These initial laws were not focused on political protests but on commercial use of flag imagery in advertising that was seen as disrespectful.4 Over time, all U.S. states would enact flag desecration laws, often referred to as "flag protection acts," prohibiting various forms of damaging or mistreating the American flag and, in some cases, state flags.
As the 20th century progressed, these state laws increasingly targeted political dissent, especially the burning of flags in protest. Prosecutions under flag desecration statutes surged during the Vietnam War era amidst the rise of anti-war and counterculture demonstrations.5 In 1968, Congress passed the first Federal Flag Protection Act, which criminalized burning or otherwise knowingly casting contempt on the flag.6 The statute imposed fines and up to one year in prison for violations. More than two dozen protestors were prosecuted under the federal law over the next two decades.7
The seminal Supreme Court case on flag desecration began with the protests at the 1984 Republican National Convention in Dallas. After setting the flag ablaze and chanting anti-American slogans, Gregory Lee Johnson was arrested, charged with violating the Texas flag desecration law, and eventually sentenced to one year in prison and a $2,000 fine.8 The Texas Court of Criminal Appeals overturned Johnson's conviction, ruling that the First Amendment protected his flag burning as symbolic speech.9 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.10
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.11 On the breach of peace issue, Brennan noted that no actual disturbance had occurred in reaction to Johnson's flag burning.12
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."13 Brennan highlighted the Court's long history of extending First Amendment protection to offensive speech and controversial symbols, such as wearing armbands protesting the Vietnam War.14
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.15 Justice John Paul Stevens' separate dissent contended that the government could lawfully "foster respect for the symbol that uniquely represents" cherished national ideals.16
The splintered Texas v. Johnson opinions, with their mix of soaring free speech principles and reverent flag symbolism, foreshadowed the impassioned public debate that would erupt in the decision's aftermath. The ruling invalidated flag desecration laws in 48 states and the federal government.17 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.18
Galvanized by the backlash against Texas v. Johnson, Congress swiftly passed a new Federal Flag Protection Act in 1989.19 Attempting to avoid the Court's First Amendment concerns, the Act criminalized burning or otherwise mutilating the flag without regard to any communicative message. Penalties included up to one year in prison and $1,000 in fines.20
The constitutionality of the new flag desecration law would not go long untested. On the same day the Act took effect in October 1989, hundreds gathered on the steps of the U.S. Capitol to protest it, and several demonstrators burned flags in defiance. Among them was Gregory Lee Johnson, the plaintiff from Texas v. Johnson.21 U.S. district courts dismissed charges brought against some of the protesters, ruling that the Flag Protection Act violated free speech rights under the precedent set in Texas v. Johnson.22
These cases were consolidated before the Supreme Court in United States v. Eichman. On June 11, 1990, the Court issued another 5-4 ruling striking 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.23 Reaffirming the core holding of Texas v. Johnson, Brennan stated that "the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."24
Dissenting again, Justice Stevens maintained that the American flag's unique symbolism permitted prohibitions on flag desecration intended to preserve the flag's status. Stevens argued that such laws did not target specific ideas but the "unique" and "venerable symbol" of the nation.25
Following the Eichman ruling, all state and federal laws banning flag desecration were unenforceable. However, the decisions fueled the growing political momentum behind a constitutional amendment to reverse them.
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.26 However, the Amendment narrowly failed to garner the 67 votes needed in the Senate, falling short by just a few votes on multiple occasions.
The most recent attempt occurred in 2006. The House approved H.J. Res. 10 by a vote of 286-130 on June 22.27 The one-sentence amendment read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."28 But on June 27, 2006, the measure fell one vote shy of passage in the Senate, 66-34.29
The Senate's rejection of the Flag Desecration Amendment in 2006 marked the last serious effort to revise the Constitution on the issue to date. But the narrow margin underscores that the flag burning debate, while largely settled as a matter of First Amendment law, remains politically contentious.
With the failure of the Flag Desecration Amendment, no flag desecration laws are currently in effect in the United States. The act of burning or otherwise damaging the American flag as a means of political protest is constitutionally protected free speech. But public opinion remains divided on the issue. In a 2006 Gallup poll, 56% of Americans still favored a constitutional amendment to ban flag burning.30
Critics of the Supreme Court decisions argue that flag desecration laws are still justified to preserve due respect for the national symbol and the sacrifices of American soldiers.31 Some advocates have proposed narrower prohibitions that might survive First Amendment scrutiny, such as bans on flag burning on federal property or burning a flag with the intent to intimidate.32
Defenders of the Johnson and Eichman rulings counter that a flag burning amendment would open the door to further erosion of free speech rights. They emphasize that other unpopular and offensive forms of expression, from civil rights protests to anti-war demonstrations, have historically been protected by the courts.33 In 2006, former Secretary of State and Chairman of the Joint Chiefs Colin Powell spoke out against the proposed amendment, warning that it would be "trivializing the Constitution" to "amend it on a fairly small issue."34
While the flag burning debate has receded from the political spotlight in recent years, the underlying tensions remain unresolved. As recently as 2019, President Donald Trump suggested that flag burning should be subject to jail time or loss of citizenship, eliciting another round of controversy.35
Although desecrating the flag cannot be prosecuted as a crime in itself, some flag-related conduct may still be punishable under other laws in certain circumstances:
- Stealing someone else's flag and damaging or destroying it could be prosecuted as theft, vandalism, or property damage.36
- Setting a flag on fire in public in a way that threatens nearby people or buildings could violate arson, reckless endangerment, or public safety laws.37
- Burning flags in violation of fire codes or ordinances against outdoor fires could result in citations.38
In these situations, while the destruction of the flag itself is not the crime, the broader conduct may be illegal for other reasons such as property rights or public safety.
The robust constitutional protection for flag desecration under the First Amendment sets the United States apart from many other democracies. A number of other countries, including some western democratic 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.39 Israel's flag laws prohibit public destruction or desecration of the Israeli flag or the flags of friendly nations, with violators facing up to three years in prison.40 Germany has also banned flag desecration since the 1980s.41 India, Japan, New Zealand, Portugal, and Norway are among the many other countries with similar laws.42
Even Canada, which in many respects has an equally strong free speech tradition, has a criminal prohibition on publicly defiling or desecrating the Canadian maple leaf flag or the Quebec fleur-de-lis.43 The law has remained on the books despite occasional legal challenges.44
The United Kingdom is a notable exception among European countries. No UK laws specifically prohibit desecrating the Union Jack, and pro-Irish protesters have at times burned the British flag without facing prosecution.45
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 reviled by many Americans and 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.