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Is It Illegal To Burn the American Flag?

Key Takeaways:

  • The Supreme Court has ruled that burning the flag in protest is protected free speech.
  • The Supreme Court decision struck down state flag desecration laws.
  • You can burn your own flag to protest, though you may be prohibited from destroying someone else's property.

The U.S. Supreme Court held that the government cannot prevent American citizens from desecrating the flag. Congress has attempted to outlaw flag burning through legislation and constitutional amendments. However, these attempts have yet to succeed.

There may be time and place restrictions to starting a fire, so don’t assume you can light up a flag anywhere. If you believe your rights were violated after burning a flag, talk to a local criminal defense attorney about your legal rights.

What Is Protected Free Speech?

The First Amendment to the U.S. Constitution protects the freedom of speech. The U.S. Supreme Court has tried to define “free speech” on different occasions. Free speech covers both direct words and symbolic actions. Examples of protected speech include:

  • The right to not salute the flag
  • The right to wear protest armbands
  • The right to use offensive words in political messages
  • The right to burn a flag in protest

The Supreme 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 has no right to decide what ideas or information people can hear.

Is Flag Burning Protected by the First Amendment?

In Texas v. Johnson, the Court held that the First Amendment protects flag burning because the action falls within “expressive conduct.” The case started when the defendant, Gregory Johnson, burned the flag in protest of the policies of then-President Ronald Reagan. He was arrested in Dallas for violating a Texas law that made flag desecration a felony.

The case made its way to the Supreme Court. In the 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 Supreme Court decision also struck down national flag desecration laws in 48 states.

Attempts to Criminalize Flag Desecration

After the Johnson decision, Congress tried to criminalize flag burning through legislation. In response to the Johnson decision, Congress passed the Flag Protection Act of 1989. This law makes it criminal to knowingly do any of the following to the flag of the United States:

  • Mutilate
  • Deface
  • Physically defile
  • Burn
  • Maintain on the floor or ground
  • Trample upon

Several 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 overturned this law in United States v. Eichman. Though Congress had tried to adopt a more content-neutral law, the legislation still limited symbolic speech.

Attempted Constitutional Amendment

Congress then tried to criminalize the act through a constitutional amendment, which the Supreme Court could not overturn. However, the Flag Desecration Amendment did not get the necessary two-thirds Congressional majority votes.

When Is Burning of the Flag Illegal?

If you want to buy and then burn a flag in protest, you have the right to do so. However, the right may not extend to someone else’s flag. If you take a flag off someone’s flagpole and burn it, it could be considered theft or destruction of property. The owner could also file a civil claim to recover the cost of the flag.

There may also be state and local laws about open fires in general. If a state park or forest has a burn ban in effect, lighting a flag on fire may present a fire hazard. For example, violating a fire restriction in a U.S. National Forest has a maximum penalty of up to 6 months imprisonment and a fine of up to $5,000.

Have Questions on Flag Burning? Speak to an Attorney

Making a political statement by burning the U.S. flag is protected speech under the First Amendment. If you are charged with other crimes while exercising your right to free expression, an attorney can defend you in court. If you want to know more about your civil rights in America, contact a criminal defense attorney near you.

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