Shortly after the 2016 election, then-President-elect Trump suggested in a Twitter post that protesters who burn the U.S. flag should face consequences like jail or losing their citizenship. In his second term, he renewed calls to make burning the American flag illegal. He certainly isn’t alone. Many Americans—including elected officials and pundits—think that burning or desecrating the flag is illegal, or should be. But the U.S. Supreme Court has repeatedly held that flag burning to make a political point is a form of free speech under the First Amendment.
Is It Illegal to Burn the American Flag?
No, not when it's done in political protest. In 1989, the Supreme Court held that burning the flag as a political protest—without any words—was “expressive conduct” entitled to constitutional protection.
Flag Burning as Protected Speech Under the First Amendment
In the 1989 case (Texas v. Johnson, 491 U.S. 397), the Court explained that actions can qualify as “symbolic speech” under the First Amendment when:
- the person intended to send a particular message through the action, and
- it’s very likely that the viewers would understand that message.
Like other examples of expressive conduct that were recognized in earlier cases—including sit-ins at segregated lunch counters during the civil rights movement—the protestor in Johnson clearly meant to communicate his political views by burning a flag during a demonstration against then-President Reagan’s policies. Because of that, his conviction (under a Texas law making it a crime to desecrate a “venerated object”) was unconstitutional. As the Court emphasized, government may not stop someone from expressing an idea just because other people find that idea offensive.
Supreme Court Struck Down Federal Flag Protection Act
In a quick response to the Johnson decision, Congress passed the Flag Protection Act (FPA) of 1989, which made it a federal crime to consciously burn, mutilate, defile, or trample a U.S. flag or leave it on the ground. Any actions to dispose of worn or dirty flags were exempted under the law. The new law prompted a rash of flag-burning protests—and arrests. The Supreme Court promptly struck down the FPA because it was clearly meant to outlaw the free expression of critical opinions about what the flag stands for. (U.S. v. Eichman, 496 U.S. 310 (1990).)
After Johnson and Eichman, there were several attempts to pass a constitutional amendment to allow restrictions on burning or defacing the flag. So far, none of those attempts has succeeded. But that’s not to say our representatives won’t renew the issue and try again.
Do Any States Still Make It a Crime to Burn the U.S. Flag?
Many states still have flag-burning crimes on the books. But these laws are unconstitutional to the extent they infringe on a person's freedom of speech. Depending on the situation, a person could face different criminal charges for flag burning if they are unlawfully destroying another person's property or government property, recklessly endangering persons or property, or violating no-burn restrictions imposed by local authorities.
More Information on Your Rights
If you're looking for more information on protestors' rights, check out these articles:
- When May Government Restrict Your Right to Assemble and Protest?
- The First Amendment and Free Speech Rights: FAQs
- Do Immigrants Have Free Speech Rights?
- Protesters' Rights: How to Protest Legally and Safely
If you've been arrested, contact a criminal defense attorney or ask for a public defender right away.