The U.S. Supreme Court has held that the government cannot prohibit citizens from desecrating the American flag. Congress has repeatedly attempted to outlaw flag burning through legislation and constitutional amendments, but none of these attempts have succeeded.
The Supreme Court has tried to define "free speech" in several of its opinions. Basically, it stated that "speech" covers areas beyond talking and writing. The court interpreted the First Amendment to apply to symbolic expressions such as burning flags, burning crosses, wearing armbands, and the like.
The court also held that the government generally can't restrict speech based on its content. That means the government can't stop someone from expressing an idea just because most people find it offensive. This is because the government doesn't have a right to decide what ideas or information people are allowed to hear.
In Texas v. Johnson, the court ruled that the First Amendment protects burning the flag because the act falls within "expressive conduct." The case started when the defendant, Gregory Johnson, burned the flag to protest the policies of then-President Ronald Reagan. He was arrested for violating a Texas law that made flag desecration a felony.
The case made its way to the Supreme Court. In this 5-4 decision striking down the law as unconstitutional, the justices stated:
"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."
This decision also struck down national flag desecration laws that existed in 48 states.
After the Johnson decision, Congress tried to criminalize flag burning through legislation. In response to the Johnson decision, Congress passed the Flag Protection Act. This law makes it criminal to knowingly do any of the following to the American flag:
A number of people expressed their disagreement with the new law by burning the flag. The constitutionality of this law also came before the Supreme Court. The Court, in the United States v. Eichman case, overturned this legislation. It ruled that although Congress had made an effort to adopt a more content-neutral law, the legislation still limited symbolic speech.
The Supreme Court continued to affirm that the First Amendment protects flag burning as symbolic speech.
Congress then tried to criminalize the act through a constitutional amendment, which the Supreme Court could not overturn, but that too never went anywhere. One such attempt, the Flag Desecration Amendment, did not get the necessary two-thirds Congressional majority votes.
Although making a political statement by burning the U.S. flag is protected speech under the First Amendment, you may be charged with other crimes while exercising your right to free expression. If you have been charged with a crime while expressing your ideas or if you want to know more about your rights, contact a criminal defense attorney near you.